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Special "K"s: contracts of adhesion and their unconscionable arbitration clauses.

INTRODUCTION

Many consumers enter into contracts on a frequent basis that they do not read. (1) Even lawyers, law professors, and law students admit to not reading through every agreement they encounter. (2) The contracts consumers sign or agree to, from on-line services to cell phone contracts, could contain important waivers of constitutional rights. (3) Contracts are traditionally considered formed when there has been a meeting of the minds, (4) and this note considers whether or not minds have truly met given the effects contracts of adhesion tend to have on typical consumers. Particularly, the note focuses on whether these effects further strengthen the notion that arbitration clauses within these types of contracts are unconscionable and whether they can be so held under current law.

THE PSYCHOLOGICAL EFFECTS OF CONTRACTS OF ADHESION

Contracts of adhesion affect consumers in ways that may not appear obvious at first. Contracts of adhesion can reduce the chances that a consumer will assert some control over the negotiations and request protections in the contract, (5) and the social situations in which contracts of adhesion arise can also inhibit consumers from protecting themselves to the extent they may in other situations. (6) These effects cast some doubt on the often touted argument that consumers are always the best judges of their own interest and will behave in ways that maximize their benefits. (7) This section explores a few of the psychological effects that contracts of adhesion tend to have on average consumers.

Decreased Likelihood of Taking Precautions

Studies and experiments have shown that consumers are more likely to take precautions in contracting when they feel as if a deal is being made rather than when confronted with a take-it-or-leave-it offer. (8) One experiment asked consumers to imagine they were contracting with a moving company to move an expensive grand piano; two scenarios were presented to the participants. (9) In each scenario, participants were asked to imagine that all the basic terms of the contract had been worked out. (10) The only difference between the two scenarios was that in one, participants were asked to imagine that a contract had already been signed with the company and were asked how likely they were to ask for a rider to the contract that would provide liquidated damages if the piano were damaged. (11) In the other, however, participants were instructed to imagine that nothing had yet been signed and were asked how likely they would be to ask for extra protections for the piano in the contract. (12) The only distinguishing feature between the two scenarios was that in the one there was a finalized agreement and in the other there was not. (13) The experiment showed that the participants who were asked to imagine they had not yet signed the contract were more likely to ask for the liquidated damages clause. (14) Even though there are other conceivable explanations, the experiment lends support to the basic idea that consumers are more willing to ask for terms that would afford them extra protections if they feel they are in a position where the deal is still being crafted and are not being confronted with a deal that has already been made. (15)

In another experiment, researchers attempted to minimize the binding effects of a contract by providing that consumers could very easily get out of the contractual arrangement and pursue a deal that was in their better interest. (16) Participants were split into two groups and asked to imagine that they were leasing a new vehicle. (17) One group of participants were told that they signed the lease, but they were free to bring the car back within three days and the lease would be cancelled. (18) Other participants were asked to imagine that a lease had not yet been signed but would go into effect within three days if the car was not returned to the lot. (19) Again, participants were not asked if they were willing to ask for any extra protection or terms; all participants, whether there was a signed lease or not, were free to walk away from the lease within the three day time period. (20) All participants were asked to imagine that within the three day window they found a better deal on the same vehicle at another dealership. (21) Again, those participants who actually signed the lease exhibited less of a willingness to get out of the lease they signed and pursue the better deal, even though they would have been perfectly within their contractual rights to walk away from their previous lease. (22) This experiment evidences that even if consumers will not have to negotiate better terms for themselves, they are still less willing to pursue their own interests if they feel as if a deal has already been made. (23)

These experiments tend to show that once consumers feel that a deal has been made they are much less willing to take precautions by asking for better terms or even by pursuing deals that would be more beneficial to them. (24) Even though these experiments may not have focused specifically on contracts of adhesion, it would seem the same principle applies, as a contract of adhesion is basically a ready-made deal. (25) It follows then that chances are that most consumers when faced with contracts of adhesion are going to be less likely to take precautions, such as asking for terms that would offer them more protections or to even shop around to pursue a better deal. (26)

Once a consumer has made a decision to pursue a certain service or product, they are much less likely to focus on terms or information that may dissuade them from the decision they have made. (27) This phenomenon of only focusing on or seeking out information that confirms or supports a decision that has already been made is called confirmation bias. (28) If a consumer has decided to pursue a certain service or product, he is more than likely only going to focus on new data and information that confirms what he is doing is a good idea. (29) This bias could make it even less likely that he will read the contract in an effort to avoid information that may contradict his opinion. (30) Even if a consumer reads the contract of adhesion, confirmation bias makes it much more likely that she will focus mainly on the portions of the contract that confirm she is making the right decision and will interpret the negative data she may encounter in a way that confirms she is entering into a good deal. (31) Also, even if consumers ask a salesperson about the terms of a contract, they are more likely to use a confirmatory test strategy, meaning they will simply look for information in the contract that confirms what they were told was true, rather than a disconfirmatory test strategy, which would actively test whether what they were told was false. (32) Therefore, even if consumers have the opportunity to read the contract of adhesion and ask questions, it should not be expected that they read it with a completely objective eye, though legally it is assumed that they have. (33)

Sunk Cost Effect

Economists assume that rational people will only make decisions based on how the decision will affect them going forward, and that it would be irrational to make decisions based on costs already incurred, as they are irrecoverable and cannot be regained based on the outcome of the decision at hand. (34) However, studies show that consumers base their decisions on the costs that they may have incurred in pursuit of a deal. (35) This "sunk cost effect" represents the idea that once a significant investment of time or effort has been made in pursuit of a deal, the more likely it is that the consumer will enter into the deal based on the time and effort already expended on pursuing the deal, regardless of unbeneficial terms. (36)

One explanation of this effect is that consumers are trying to maintain self-esteem. (37) After spending considerable time, effort, or resources in pursuit of a deal, it may help the consumer feel as if he has not wasted these things by deciding to enter into the deal instead of expending even more time, effort, or resources on a deal that may be more favorable to him. (38) This is an effect that can definitely be taken advantage of in the context of contracts of adhesion. (39) Given the "sunk cost effect," sellers could decide to simply include the contract in the box with the package, knowing that once the consumer has committed to buying the item, she will likely not return it due to a contract condition. On the other hand, a salesperson may only begin discussing the terms of an actual agreement at the end of a lengthy discussion about the product or service itself, therefore relying on the idea that once the consumer has invested so much time in learning about the product or service, she will not likely want to repeat the process somewhere else simply because of a potentially objectionable contract term. (40)

Sociological Explanations

There are several sociological explanations of why consumers may end up signing contracts of adhesion even though they contain terms that are unfavorable to the consumer. (41) Usually the consumer is presented with a contract of adhesion by a salesperson. (42) When someone extends the traditional American greeting of "how are you?" to another, the responses will invariably be "fine" or "good," no matter the actual physical or mental state of the person answering. (43) Likewise, even if a consumer were to inquire about an objectionable term the response of the salesperson is likely to be "do not worry" or "that is standard for all customers." (44) Neither answer would be a real response to the consumer's question about the objectionable term. Most likely because of the communication ritual, the consumer would accept the non-answer out of habit. (45) The actual content of the answer provided makes little difference as long as the syntax of an answer has been provided. (46)

Also, consumers often receive social cues that they are expected to sign a contract and in certain situations may actually receive social cues that they are expected not to read the contract at all. (47) For example, someone who is renting a car for a trip might find it rude to the other customers to read through a whole rental agreement before signing if it means delaying their fellow customers. (48) Someone who insists on doing so may be on the receiving end of sighs, blank stares, and unkind comments for holding the process up too long. (49) Another example is a meeting with a broker that is scheduled for an hour in which there is a thirty minute chat before the broker produces a pile of papers and agreements that are meant to be dealt within the half-hour or so remaining in the meeting. (50) Thus, even sophisticated consumers who are inclined to at least look through all contracts of adhesion before they sign them may forego this option because of social pressure to expedite the process. (51)

Did Minds Really Meet?

There is, of course, a concern that giving these psychological effects too much consideration could erode the idea of personal responsibility and courts might be given too free a hand at reforming agreements that were freely entered into. However, even if a consumer took her duty to read seriously, there would still be lingering doubt about whether she correctly understood it. Contract law has yet to take into account new studies on the literacy of the American population and the readability of contracts of adhesion. (52) The duty to read could be characterized as a duty to understand. (53) This is an understanding which has remained too static in a world where many factors in the areas of contract law have changed, including: "a continual increase in the volume and complexity of contract forms, a marked increase in the number of consumers deemed eligible for consumer credit, [and] evidence of increased use of abusive, unfair, or at least unexpected terms in consumer contracts...." (54) If the consumer who wishes to fulfill her duty to understand cannot comprehend the contract despite her best efforts, one might question whether minds ever truly met, a traditional requisite for contract formation. (55)

ARBITRATION CLAUSES, USES AND ABUSES

Often present in consumer contracts of adhesion are agreements to go to arbitration instead of court if a dispute were to arise between the parties. (56) Arbitration can be a cost effective means of settling disputes between sophisticated parties if both sides are committed to making the process work. (57) However, though arbitration can be a low-cost alternative to litigation in some instances, it comes with certain risks to consumers. (58) This section explores how companies are capable of including unconscionable terms in contracts of adhesion and certain unconscionable terms they favor including.

Pulled Down by our Own Bootstraps

To truly understand the full impact that arbitration clauses in contracts of adhesion may have, one must understand and appreciate the mighty power of "the bootstrap." Arbitration bootstrapping describes a situation in which a company enforces terms that a state court might otherwise find unconscionable by simply including it in the arbitration agreement rather than in another section of the contract. (59) Until fairly recently, there were two controls on the ability to enforce abusive terms through arbitration-- unconscionability and the "Effective Vindication" Doctrine." (60)

The Supreme Court has undermined the ability to challenge the arbitration clauses themselves as unconscionable in its AT&T Mobile, LLP v. Concepcion opinion. (61) The Concepcions sought to challenge a term in an arbitration clause that prevented them from forming a class to participate in arbitration with AT&T. (62) In the past, California courts found class waiver requirements unconscionable and held this one to be unconscionable as well. (63) The Supreme Court ruled that the Federal Arbitration Act (FAA) (64) preempted any state doctrine that might hold class waivers in arbitration clauses to be unconscionable. (65) The "Effective Vindication Doctrine" (66) prevented arbitration if a party's ability to effectively vindicate its rights in arbitration would not be possible. (67) However, the Court impeded this consumer protection doctrine as well in American Express Co. v. Italian Colors Restaurant. (68) In Italian Colors, the Court held that even if the cost of arbitration would exceed the possible total recovery the plaintiff could expect, the challenge of unconscionability was still preempted by the FAA. (69) These two cases only dealt with the unconscionability of class action waivers in arbitration agreements being preempted by the FAA; however, commercial interests are increasingly harnessing the reasoning in these opinions to enforce terms in arbitration agreements that had generally been held unconscionable. (70) Arbitration is now intruding on areas of law never intended by the FAA, (71) "including laws against fraud, deception, predatory conduct, antitrust violations, and employment discrimination." (72)

Forum Selection Clauses

The forum where a suit is tried can often be critical to the case. (73) The plaintiffs ability to choose what forum to litigate in is an important procedural protection, especially when taking on a corporate giant. (74) Parties can contract for the forum in which they wish to litigate; however, state courts retain the power to invalidate forum selection clauses through either the doctrine of unconscionability or finding it against public policy for other reasons (e.g. if the forum will be thousands of miles away for the plaintiff). (75) For example, a judge in California may invalidate a forum selection clause that moves the litigation to Utah, a state that has shorter statutes of limitations for some actions and does not provide enhanced damages for others. (76) However, if a clause in the arbitration agreement within a contract of adhesion contains a forum selection clause, a court will be severely limited in its ability to invalidate the clause. (77) Because it appears in the arbitration agreement instead of the main body of the contract, it may be enforceable because of arbitration bootstrapping. (78)

Limitations on Limitations

Statutes of limitations and repose serve important functions, including preserving evidence and preventing stale claims from being brought. However, these statutes must also be long enough to allow those who may have a claim to collect their facts and prepare a case. (79) Arbitration clauses also carry an astonishing ability to shorten statutes of limitations. (80) Many state courts have found the contractual limits on a statute of limitations to constitute substantive unconscionability. (81) Again, the bootstrapping ability of arbitration clauses offers commercial interests a handy way to insert these limitations anyway by simply including them in the arbitration clause rather than in a different section of the contract. (82)

Also, there is a possibility that arbitration clauses can be used to limit the amount and types of damages a plaintiff may be entitled to pursue by statute. (83) When a federal statute provides for treble or punitive damages, parties may not contractually waive their right to those damages, and state courts generally will not allow contractual waivers of damages to conflict with similar state laws. (84) Although these conditions would not be allowed in a contract, it is up to the arbiter to decide whether the damage limitations in the agreement are enforceable if they are found in the arbitration clause. (85) It is not clear whether arbiters are bound by statutes that make those damages available. (86)

Class is Cancelled

By pooling resources, class action suits make it possible for consumers to sue large corporations in instances where the cost of litigation or arbitration would vastly outweigh the award any one plaintiff may be able to recover. (87) Discover Card's website provides an example of a class action waiver: "Arbitration must be on an individual basis. This means neither you nor we may join or consolidate claims in arbitration by or against other card members, or litigate in court or arbitrate any claims as a representative or member of a class or in a private attorney general capacity." (88) The Supreme Court has said, "[w]here it is not economically feasible to obtain relief within the traditional framework of a multiplicity of small individual suits for damages, aggrieved persons may be without any effective redress unless they may employ the class-action device." (89) However, as seen in both Concepcion and Italian Colors, the Supreme Court is contented with making sure consumers are left without this option as long as it is included in an arbitration clause and not within the main body of the contract. (90) Thankfully, the Consumer Financial Protection Bureau has completed a study of arbitration clauses in the credit card industry which reveals arbitration clauses including class-action waivers prevent consumers' grievances from being adequately addressed, and until appropriate regulation follows, one can hope the Supreme Court's own forceful case for class action suits will encourage other courts to defend them against arbitration clauses. (91)

Fee Shifting

Discover, again, provides an example of a fee shifting model within an arbitration clause:
   If you wish to begin an arbitration against us but you
   cannot afford to pay the organization's or arbitrator's costs,
   we will advance those costs if you ask us in writing.... If
   you lose the arbitration, the arbitrator will decide whether
   you must reimburse us for money we advanced for you for
   the arbitration. If you win the arbitration, we will not ask
   for reimbursement of money we advanced. Additionally, if
   you win the arbitration, the arbitrator may decide that you
   are entitled to be reimbursed your reasonable attorneys'
   fees and costs (if actually paid by you). (92)


If a plaintiff is unable to recover her attorney's fee from pursuing certain cases, it will render even a substantial claim unworthy of pursuit. (93) Some states have statutes that put into place pro-plaintiff fee shifting provisions that courts have held cannot be contracted around, and some have held it unconscionable to try to contractually manipulate the fee-shifting statutes. (94) "Loser pays" fee shifting provisions have also been found to be unconscionable by some state courts. However, other courts, armed with the reasoning of Concepcion and Italian Colors, have enforced the Supreme Court's command to give deference to arbitration clauses that have manipulated traditional pro-plaintiff fee shifting mechanisms. (95)

SHOULD ALABAMA COURTS HOLD ARBITRATION CLAUSES IN CONTRACTS OF ADHESION UNCONSCIONABLE?

This section considers the Alabama doctrine of unconscionability. It argues that even if the application of unconscionability has been severely limited by the FAA, the substance of the doctrine is still met and consumers are nonetheless exploited.

When will the FAA Apply in Alabama?

In order for the FAA to apply, the arbitration clause has to substantially affect interstate commerce. (96) However, one Alabama case demonstrates that particular limitation is theoretical at best. In Sisters of Visitation v. Cochran Plastering Co., a group of nuns who ran a monastery and religious retreat in Mobile began an arbitration against Cochran Plastering Company ("Cochran") for allegedly ruining artwork in the chapel. (97) Cochran argued that arbitration could not be compelled by the FAA because the contract did not affect interstate commerce. (98) The Alabama Supreme Court agreed, finding that the contract was between two local parties only. (99) The court reasoned that there was nothing in the record indicating that the tools, materials, workers, or anything else used for the project moved through interstate commerce. (100) This opinion on its own suggests that if the Sisters could have shown even that Cochran's tools had moved through interstate commerce, the FAA would have applied to the arbitration agreement. (101)

The Supreme Court struck down the Alabama Supreme Court's reasoning of Sisters in Citizens Bank v. Alafabco, Inc. (102) In Citizens, Alafabco sued Citizens Bank over a debt restructuring settlement that involved an arbitration clause. (103) Using the reasoning of Sisters, the Alabama Supreme Court held that because the debt settlement did not affect interstate commerce, the arbitration clause could not be compelled under the FAA. (104) The Supreme Court held that the Alabama Supreme Court had taken a much too narrow view of what substantially affects interstate trade. (105) The Court held that because Alafabco was engaged in business in North Carolina and Tennessee, using money loaned to it from Citizens Bank, and because all the collateral the bank had used to secure the loans had moved through interstate commerce, the FAA obviously applied because the debt restructuring substantially affected interstate commerce. (106) Also, the Court held that it was fairly obvious that debt restructuring is an activity which has the potential to substantially affect the national economy. (107)

Given these precedents, the FAA will apply to any contract of adhesion with an arbitration clause in which the good or service would have a substantial effect on interstate commerce. (108) In the Alabama Supreme Court's initial ruling in Sisters, the court suggested that it would have been enough if Cochran could have shown that the supplies or labor used in his business had moved through interstate commerce. (109) Therefore, it is likely the FAA will apply to most consumer adhesion contracts in which the product or service has travelled through, or will have a substantial effect on, interstate trade. (110)

What is Unconscionable in Alabama?

In Alabama, the concept of unconscionability has been refined over time and has been reduced down to two main elements. (111) The concept was originally defined as a term that no honest or reasonable person would ever offer on the one hand, and one which no honest or reasonable person would accept on the other. (112) Eventually this concept was broken in four elements: "(1) whether there was an absence of meaningful choice on one party's part, (2) whether the contractual terms are unreasonably favorable to one party, (3) whether there was unequal bargaining power among the parties, and (4) whether there were oppressive, one-sided, or patently unfair terms in the contract." (113) The Alabama Supreme Court has reduced these four elements down to their essence--"terms that are grossly favorable to a party that has overwhelming bargaining power." (114) The court also distinguishes between procedural and substantive unconscionability, overwhelming bargaining power corresponding to procedural unconscionability, and grossly unfavorable terms of the contract constituting substantive unconscionability. (115)

A few Alabama cases give guidance as to how to establish these two elements. To decide whether overwhelming bargaining power, i.e. procedural unconscionability, is shown, the Alabama Supreme Court considers whether the plaintiff has been able to show that the product or service was unavailable to the plaintiff without signing a contract with an arbitration clause. (116) Similarly, the Alabama Supreme Court has found grossly unfavorable terms (i.e. substantive unconscionability) in cases where the contract has provided for incredibly broad application of the arbitration clause, the arbitrator is allowed to decide the threshold issue of whether arbitration should be compelled, and in instances where one party has reserved the right to defend themselves in court if damages exceed a certain limit. (117)

Should Arbitration Clauses in Consumer Contracts of Adhesion be Held Unconscionable in Alabama?

Because of Conception and Italian Colors, the Supreme Court may not have outright abolished the doctrine of unconscionability, but it has certainly been crippled. (118) Supposing that the Court continues to follow the plain text of [section] 2 of the FAA and enforce state contract claims, it seems clear that, given the Alabama precedents and test for unconscionability, the psychological effects of contracts of adhesion should render the arbitration clauses they contain unconscionable. The psychological effects of the contract of adhesion, coupled with the lack of choice, should be deemed to show the second prong of the test: overwhelming bargaining power. Additionally, the grossly unfavorable terms, bootstrapped by the arbitration clause, ought to satisfy the first prong: grossly unfavorable terms.

In Alabama, the second prong of the unconscionability test considers whether or not a meaningful choice was made. (119) This is meant to counteract the tendency of contracts of adhesion to become contracts "in which one predominant unilateral will dictates its law to an undetermined multitude ... which, as the Romans said, resemble[s] a law much more than a meeting of the minds." (120) Considering the ubiquity of contracts of adhesion in modern life (121) and the psychological affects that they tend to have on consumers, (122) it is difficult to exactly call the consumer contract of adhesion a meeting of the minds. In fact, one might say that someone has more of an ability to bargain with the State over the passing of a law by engaging in the political process to elect one's legislature or even simply by calling one's representatives to advocate for change. It is difficult to imagine a consumer being able to call up the CEO of her credit card company and successfully demand changes in her consumer contract. In fact, the take-it-or-leave-it nature of the deal will make it less likely she will take any precautions at all. (123) Moreover, because some industries include nearly identical terms in their contracts of adhesion from company to company, there may be no point in shopping around at all. (124) Along with the prevalence of contracts of adhesion in the modern economy, confirmation bias, the "sunk cost effect," and the social pressures consumers typically experience to not read the contract, are further indicators that no meaningful choice has truly been made as to the terms of the contract. Therefore, in many cases it would seem that the second prong of the Alabama test will be met in cases of arbitration clauses in consumer contracts of adhesion.

The first prong of the test should also be considered to be met if the company has included terms that would otherwise be held unconscionable in the arbitration clause. Even though the practice of bootstrapping may make legal sense, it simply makes no logical sense that a term that a state would typically consider unconscionable should be magically transformed, with a level of skill and ease that would make Cinderella's fairy godmother envious, as perfectly legitimate merely because it was moved from the main body of the contract to the arbitration clause. (125) The fees are just as shifted, the awards just as limited, the statutes of limitations just as shortened in one instance as in the other. In short, the rights of the state's citizens are being just as limited in the arbitration clause as they are in the main contract, and states ought to be able to give their citizens an opportunity to vindicate those rights. (126)

The perennial retort to these arguments is that everyone has the opportunity to read the contract and ought to be allowed to enter into bad deals if they wish. An argument could be made, however, that the length of most consumer contracts--the average is the length of the first Harry Potter book, about 74,000 words; (127) the iTunes contract alone is about thirty-two feet long when printed (128)--and the legalese render most consumer contracts of adhesion impenetrable to the average consumer. (129) One experiment showed that even when consumers were explicitly told to read the arbitration clause, thirty-seven percent of respondents answered incorrectly about rights they had given up, and thirty-eight percent simply answered they did not know, meaning only a quarter of respondents actually understood the clause. (130)

Also, with contracts of adhesion invading products from cell phones to internet services, it would seem that the only choice to be made is to agree to the terms or live as a hermit cut off from modern society. (131) The notion of "freedom" of contract, however, continues to be used to justify countless contract terms that the consumer could not have negotiated or understood. (132) But if the ancient Romans were right and these types of contracts resemble a private law more than a meeting of the minds, (133) this argument for freedom of contract also seems to carry with it the right of a powerful party to draft its own private law completely independent of any restraint on abuse that could be imposed by the state. (134) Preston and McCann draw upon a useful metaphor: It is difficult to see how the modem consumer has any more choice about entering into contracts of adhesion containing arbitration clauses than his ancestors of yesteryear had to farm the lord's manor. (135) The ordinary consumer, the serf, is protected in theory by the King's justice, unconscionability and state law, but the corporate lords have been given such considerable discretion, under the FAA, that these protections are hardly effective. (136) Thus, the lords draft with relative impunity, and once again the serf-consumer is unable to escape from the manorial system. (137) Therefore, even though the Supreme Court may have rendered the doctrine of unconscionability a tempest in a teacup, the underlying principles of the doctrine still demonstrate that these contracts should be deemed unconscionable, even though they most likely cannot be held as such under the present law.

CONCLUSION

Because of the psychological effects that contracts of adhesion tend to have on consumers, and the grossly unfavorable terms that make their way into contracts of adhesion cloaked in arbitration clauses, even if the law as it is will not hold them unconscionable, the law as it should be absolutely would. To borrow another analogy from Preston & McCann, the conventional equine wisdom used to be that under no circumstances should a horse be fed straight alfalfa. (138) This myth has been debunked, and the common wisdom now is that alfalfa is fine for horses so long as it is fed in fixed amounts. (139) If a horse has the opportunity to eat alfalfa as a steady diet, it may grow fat and gassy and eventually die. (140) Adhesion contracts and arbitration clauses are the alfalfa of contract law; they may be useful to the modern economy in limited amounts but are dangerous to the purposes of contract law when made a steady diet. (141) The result is that powerful drafters grow all the more fat, (142) and the ability of contract law to protect consumers from those drafters' interests grows all the more anemic. (143)

(1.) Debra Stark & Jessica Choplin, A License to Deceive: Enforcing Contractual Myths Despite Consumer Psychological Realities, 5 N.Y.U. J. L. & Bus. 617, 705 (2009).

(2.) Edith R. Warkentine, Beyond Unconscionability: The Case for Using "Knowing Assent" as the Basis for Analyzing Unbargained-for Terms in Standard Form Contracts, 31 Seattle U. L. Rev. 469, 515 (2008).

(3.) Larry J. Pittman, The Federal Arbitration Act: The Supreme Court's Erroneous Statutory Interpretation, Stare Decisis, and a Proposal for Change, 53 Ala. L. Rev. 789, 791 (2002).

(4.) Cheryl Preston & Eli McCann, Llewellyn Slept Here: A Short History of Sticky Contracts and Feudalism, 91 Or. L. Rev. 129, 131 (2012).

(5.) See Hoffman & Wilkinson-Ryan, The Psychology of Contract Precautions, 80 U. CHI. L. REV. 395, 411 (2013).

(6.) Stark & Choplin, supra note 1, at 656.

(7.) See Shmuel Becher, Behavioral Science and Consumer Standard Form Contracts, 68 La. L. Rev. 117, 120(2007).

(8.) See Hoffman & Wilkinson-Ryan, supra note 5, at 409.

(9.) Id. at 410.

(10.) Id.

(11.) Id.

(12.) Id.

(13.) Id.

(14.) See Hoffman & Wilkinson-Ryan, supra note 5, at 411.

(15.) Id.

(16.) Id. at 416.

(17.) Id.

(18.) Id. at 417.

(19.) Id.

(20.) See Hoffman & Wilkinson-Ryan, supra note 5, at 417.

(21.) Id.

(22.) Id. at 418-19.

(23.) Id.

(24.) See id.

(25.) See Warkentine, supra note 2, at 485-86.

(26.) See Hoffman & Wilkinson-Ryan, supra note 5, at 411, 418-19.

(27.) See Becher, supra note 7, at 131.

(28.) Id. at 132.

(29.) Id.

(30.) See id.

(31.) See id.

(32.) Stark & Choplin, supra note 1, at 664.

(33.) See id. at 666-67 (asserting that consumers may be overly optimistic about the likelihood of problems that may arise from the contract).

(34.) Becher, supra note 7, at 125.

(35.) Id. at 126.

(36.) Id. at 126-27.

(37.) Id. at 127.

(38.) Id.

(39.) Id. at 131.

(40.) Becher, supra note 7, at 130-31.

(41.) Stark & Choplin, supra note 1, at 656-57.

(42.) Id. at 617.

(43.) Jessica Choplin, Debra Stark, & Jasmine Ahmad, A Psychological Investigation of Consumer Vulnerability to Fraud: Legal and Policy Implications, 35 Law & Psychol. Rev. 61, 69 (2011).

(44.) See id. at 69-70.

(45.) Id. at 69-70.

(46.) Id. at 70 (citing an experiment finding that even nonsensical explanations are effective for gaining compliance).

(47.) Stark & Choplin, supra note 1, at 673-75.

(48.) Id. at 674-75.

(49.) See id. at 675.

(50.) Id. at 674.

(51.) Id. at 675.

(52.) Alan White & Cathy Mansfield, Literacy and Contract, 13 Stan. L. & Pol'y Rev. 233, 234-35 (2002).

(53.) Id.

(54.) Id. at 234.

(55.) Preston & McCann, supra note 4, at 143.

(56.) See Pittman, supra note 3, at 790.

(57.) Todd B. Carver & Albert A. Vonda. Alternative Dispute Resolution: Why it Doesn't Work and Why it Does, Harv. Bus. R. (May-June 1994), https://www.hbr.org/1994/05/alternative-dispute-resolution-why-it-doesnt-work- and-why-it-does.

(58.) See infra Part III (A-E).

(59.) See Christopher Leslie, The Arbitration Bootstrap, 94 Tex. L. Rev. 265, 266 (2015).

(60.) Id. at 267.

(61.) Id. at 266-67.

(62.) Id. at 267.

(63.) Id.

(64.) 9 U.S.C. [section]2 (1947).

(65.) AT&T Mobility, LLC v. Concepcion, 563 U.S. 333, 352 (2011).

(66.) Leslie, supra note 59, at 267.

(67.) Id. at 268.

(68.) Id.

(69.) Id.

(70.) See id.

(71.) Anjanette Raymond, It Is Time the Law Begins to Protect Consumers From Significantly One-Sided Arbitration Clauses Within Contracts of Adhesion, 91 Neb. L. Rev. 666, 666 (2013).

(72.) Leslie, supra note 59, at 268.

(73.) Id. at 289.

(74.) Id.

(75.) See id. at 289-90.

(76.) Id.

(77.) See id.

(78.) See supra Part II (A).

(79.) Leslie, supra note 59, at 282.

(80.) Id.

(81.) See id.

(82.) Id.

(83.) Id. at 284-86.

(84.) Id.

(85.) Leslie, supra note 59, at 300.

(86.) Id. at 284-86.

(87.) See id. at 274.

(88.) A Sample Cardmember Agreement-Arbitration, Discover (Oct. 27, 2016), https://www.discover.com/credit-cards/cardmember agreem em/arbitration.html?ICMPGN=AGREE_LHN_ARB_TXT.

(89.) Deposit Guar. Nat'l Bank v. Roper, 445 U.S. 326, 339 (1980).

(90.) See AT&T Mobility, LLC v. Concepcion, 563 U.S. 333, 339 (201 1); see also American Express Co. v. Italian Colors Restaurant, 133 S. Ct. 2304, 2307 (2013).

(91.) David Lazarus, Credit Card Issuers Shouldn't Bully Customers into Arbitration Clauses. L.A. Times (Mar. 23, 2015, 8:21 I'M), http://www.latimes.com/business/la-fi- lazarus-20150324-column.html.

(92.) Discover, supra note 88 (emphasis added).

(93.) Leslie, supra note 59, at 287.

(94.) Id.

(95.) See id.

(96.) Allied Brue-Terminex Companies, Inc. v. Dobson, 513 U.S. 265, 276-78 (1995).

(97.) Sisters of the Visitation v. Cochran Plastering Co., 775 So. 2d 759, 760 (Ala. 2000).

(98.) Id. at 760.

(99.) See id. at 765-67.

(100.) Id. at 766.

(101.) See id.

(102.) Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 57-58 (2003).

(103.) Id. at 53-54.

(104.) Id. at 55.

(105.) See id. at 56.

(106.) Id. at 57.

(107.) Id. at 57-58.

(108.) See Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 57-58 (2003).

(109.) See Sisters of the Visitation v. Cochran Plastering Co.. 775 So. 2d 759, 766 (Ala. 2000).

(110.) See id.; see also Citizens Bank, 539 U.S. at 57-58.

(111.) See Leeman v. Cook's Pest Control, Inc., 902 So. 2d 641, 645 (Ala. 2004).

(112.) See id.

(113.) Layne v. Gamer. 612 So. 2d 404,408 (Ala. 1992).

(114.) American Gen. Fin., Inc. v. Branch, 793 So. 2d 738, 748 (Ala. 2000).

(115.) See Leeman, 902 So. 2d. at 646-47.

(116.) See id. ; Branch, 793 So. 2d at 750-51.

(117.) See Leeman, 902 So. 2d. at 652.

(118.) Preston & McCann, supra note 4, at 165.

(119.) See Leeman, 902 So. 2d at 646.

(120.) Preston & McCann, supra note 4, at 131 (quoting Albert A. Ehrenzweig, Adhesion Contracts in the Conflict of Laws, 53 Colum. L. Rev. 1072, 1075 n.17 (1953)).

(121.) See Pittman, supra note 3, at 791.

(122.) See supra Part II (A-E).

(123.) See supra Part I (A).

(124.) Alina Tugend, Those Wordy Contracts We All So Quickly Accept, N.Y. Times, Your money (July 12, 2013, 9:40 AM), http://www.nytimes.com/2013/07/13/your- money/novel-length-contracts-online-and-what-they-say.html.

(125.) Marissa Lawson, Judicial Economy at What Cost? An Argument for Finding Binding Arbitration Clauses Prima Facie Unconscionable, 23 Rev. Litig. 463, 472 (2004).

(126.) Pittman, supra note 3, at 798.

(127.) Tugend, supra note 124.

(128.) Jeff Sovern, Forum: Consumers Often Sign Contracts They Don't Read or Understand, Pittsburgh Post-Gazette (Mar. 3, 2015 12:00AM). http://www.post- gazette.com/business/legal/ 2015/03/03/Forum-Consumers-often-sign-contracts-they-don-t-read-or understand/stories/201502240007.

(129.) Id.

(130.) Id.

(131.) See Preston & McCann, supra note 4, at 141.

(132.) See id. at 140.

(133.) Id. at 131.

(134.) Id.

(135.) Id. at 139.

(136.) Id. at 140.

(137.) See Preston & McCann. supra note 4, at 141.

(138.) Id. at 132.

(139.) Id.

(140.) Id.

(141.) Id.

(142.) See Preston & McCann, supra note 4, at 132.

(143.) Leslie, supra note 59, at 268.

ZEB VAUGHN

* J.D. Candidate, The University of Alabama School of Law, 2018; B.A. in English Education, Jacksonville State University, 2012. This note is dedicated to my parents, Mickey and Jennifer Vaughn, for providing me with every opportunity I have had and for their inspiring examples of selflessness, courage, and hard work through the years.
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