Bootstraps on the Ground

Richard Frankel, Director of the Appellate Litigation Clinic and Associate Professor of Law at Drexel University’s Thomas R. Kline School of Law, has published a response to an article previously featured on this blog.  In “Bootstraps on the Ground:  A Response to Professor Leslie,” 94 Tex. L. Rev. 188 (2016); Drexel University Thomas R. Kline School of Law Research Paper No. 2016-A-06, Professor Frankel examines the potential effect of recent U.S. Supreme Court case law on so-called arbitration bootstrapping.

Here is the abstract:

In his recent article, “Arbitration Bootstrapping,” Professor Christopher Leslie identifies a problem created by modern arbitration law: that a corporation can take a contract provision that would ordinarily be unenforceable under state law and make it enforceable simply by embedding that provision inside a mandatory arbitration clause. In this response, I agree with Professor Leslie that arbitration bootstrapping that allows unfair contract terms to be enforced against consumers should not be permitted. At the same time, I argue that Professor Leslie’s argument that arbitration bootstrapping is compelled by the U.S. Supreme Court’s recent arbitration decisions may inadvertently cause more bootstrapping rather than less. I contend that the Supreme Court’s decisions should be read more narrowly, that arbitration bootstrapping is not compelled or inevitable, and that bootstrapping currently is less prevalent that Professor Leslie suggests. As a result, While Professor Leslie contends that the Supreme Court’s recent decisions were wrongly decided, accepting his argument about their reach may cause courts to increase bootstrapping by applying it situations where they previously have not done so.

This and other journal articles written by Professor Frankel may be downloaded for free from the Social Science Research Network.

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