The Unconscionability Game: Strategic Judging and the Evolution of Federal Arbitration Law
By Aaron-Andrew Bruhl, February 8, 2012
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The author uses recent changes in arbitration agreements to illustrate how strategic dynamics drive doctrinal change. The author begins by looking at how the Supreme Court’s pro-arbitration directives have transformed the FAA. Next, the author examines how lower courts insulate their decisions from unfavorable review by ideologically adverse reviewing courts. Finally, the author looks at how recent decisions have altered the balance of power between state and federal courts as well as courts and arbitrators.
