David Horton, ‘Mass Contracting and Democratic Legitimacy’

Margaret Jane Radin’s new book, Boilerplate, is a welcome attempt to rekindle radical skepticism of mass contracting. Radin organizes her dense and sprawling masterpiece around two central claims. First, she argues that the widespread use of standard forms causes “normative degradation”: the erosion of contract law’s bedrock requirement of consent. Second, and more provocatively, she echoes leftist courts and scholars from the 1970s and argues that the lockstep use of standard forms permits private actors to override the public laws and thus causes “democratic degradation.”

In this essay, I use the Court’s recent and pending Federal Arbitration Act (FAA) jurisprudence to illustrate the fertility of Radin’s insights. I argue that the pervasiveness of arbitration clauses in consumer and employment contracts vividly illustrates the wear on democratic ideals that Radin describes. To be sure, accusations of democratic illegitimacy are usually the province of public law, where federal judges invalidate and interpret legislation, and bureaucrats enjoy broad discretion to add their own gloss to statutes. But the core objection to these practices — that they permit unelected officials to rewrite the legislative blueprint — has a shadowy analogue in mass arbitration. With no escape from arbitration hegemony, a rising number of plaintiffs must resolve state and federal statutory claims under privately-made procedural rules. This trend would not necessarily be troubling if adhesive arbitration provisions were consensual. But judges often warp black-letter contract principles to validate these clauses. Moreover, the Court’s separability doctrine — a legal fiction that allows arbitrators to decide the very question of whether an arbitration clause is valid — widens the gulf between arbitration and consent. Finally, after years of denying that arbitration affects substantive rights, the Court is now shunting plaintiffs to an extrajudicial forum even when there is no dispute that doing so will deprive them of any remedy. Thus, through the expedient of printed or electronic words, corporations “delete rights that are granted through democratic processes” (p. 16).

Horton, David, Mass Contracting and Democratic Legitimacy (March 19, 2013). University of Colorado Law Review, Vol. 84, 2013, Forthcoming.

First posted 2013-03-21 17:13:42

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