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Arbitration law in the United States is far more controversial when applied to individuals than to businesses. While enforcement of arbitration agreements between businesses sometimes raises legal issues that divide courts, those issues tend to interest only scholars, lawyers, and other specialists in the field of arbitration. In contrast, enforcement of arbitration agreements between a business and an individual (such as a consumer or employee) raises legal issues that interest many members of Congress and various interest groups — all of whom have taken positions on significant proposals for law reform. The Consumer Financial Protection Bureau has extensively researched and reported on consumer arbitration agreements and is expected to issue a rule regulating, or even prohibiting, such agreements. This Article both explains how issues surrounding consumer and other adhesive arbitration agreements became divisive along predictable political lines and introduces a framework to understand and compare various positions on them. This new framework arrays on a continuum five positions on the level of consent the law should require before enforcing an arbitration agreement against an individual. Progressives generally would require higher levels of consent than arbitration law currently requires, while conservatives generally defend current arbitration law’s low standards of consent. This Article proposes an intermediate (or centrist) position. It joins progressives in rejecting conservative-supported anomalies that enforce adhesive arbitration agreements more broadly than other adhesion contracts on the three important topics: contract-law defenses, correcting legally-erroneous decisions, and class actions. Once these anomalies are fixed though, adhesive arbitration agreements should — contrary to progressives — be as generally enforceable as other adhesion contracts. In other words, this Article joins conservatives in defending general enforcement of adhesive arbitration agreements under contract law’s standards of consent. The Article briefly concludes with the language of a rule the CFPB could adopt to enact into law the reforms advocated in this Article.

The “balanced realist” view that judging inevitably involves lawmaking is widely accepted, even among originalists, such as Justice Scalia, Randy Barnett and Steven Calabresi. Yet many lawyers are still reluctant to acknowledge publicly the inevitability of judicial lawmaking. This reluctance is especially common in debates over the Missouri Plan, a method of judicial selection that divides the power to appoint judges between the governor and the bar. The Missouri Plan is one of three widely-used methods of selecting state court judges. The other two are: (1) direct election of judges by the citizenry, and (2) appointment of judges by democratically elected officials, typically the governor and legislature, with little or no role for the bar. Each of these two methods of judicial selection respects a democratic society’s basic equality among citizens — the principle of one-person, one-vote. In contrast, the Missouri Plan violates this principle by making a lawyer’s vote worth more than another citizen’s vote. This Article provides a case study of the clash between the inevitability of judicial lawmaking and the reluctance of lawyers to acknowledge this inevitability while defending their disproportionate power under the Missouri Plan. The Article documents efforts by lawyers in one state, Kansas, to defend their version of the Missouri Plan by attempting to conceal from the public the fact that Kansas judges, like judges in the other 49 states, inevitably make law. The case study then shows examples of Kansas judges making law. The Article concludes that honesty requires lawyers participating in the debate over judicial selection in the United States to forthrightly acknowledge that judges make law. Lawyers who seek to defend the power advantage the Missouri Plan gives them over other citizens can honestly acknowledge that this is a power advantage in the selection of lawmakers and then explain why they believe a departure from the principle of one-person, one-vote is justified in the selection of these particular lawmakers.

Consenting to a contract containing an arbitration clause or a jury-waiver clause alienates or waives the Seventh Amendment jury-trial right in federal court. The standards of consent in arbitration law, however, tend to be lower than the standards of consent in the federal caselaw governing jury-waiver clauses. The Federal Arbitration Act (FAA) requires courts to apply contract law's standards of consent to arbitration agreements, while certain commentators argue that courts are instead constitutionally required to apply the higher standards of consent (knowing consent) found in the caselaw governing jury-waiver clauses. This article responds to these commentators and argues that the FAA's contract-law standards of consent are constitutional.

Property is generally understood in two ways. Most people think of property as a thing that is owned by someone. By contrast, lawyers and other specialists understand property as rights against people with respect to things. This duality in our understanding of property can cause confusion when lawmakers mix the colloquial understanding of property as thing-ownership with the specialist's understanding of property as a bundle of rights. Such mixing seems to have occurred in the law governing security interests in bankruptcy. As a result, courts are split on a frequently recurring issue: must a secured creditor who, at the time the debtor files for bankruptcy, has repossessed goods but not yet sold them at foreclosure, relinquish possession of those goods? Law governing secured transactions in bankruptcy includes state law, UCC Article 9, and the federal Bankruptcy Code. This article's first section explains that the specialist's understanding of property pervades Article 9 but that an important section of the Bankruptcy Code (section 542(a)) is not as clear about whether it uses the colloquial understanding of property as thing or the specialist's understanding of property as a bundle of rights. Section II of this article briefly summarizes the majority view, based on the Supreme Court's decision in United States v. Whiting Pools, Inc., that section 542(a) uses the colloquial understanding of property. Courts applying this view to secured creditors who have repossessed goods, but not yet sold them at foreclosure, hold that the creditor must deliver (turnover) possession of the goods to a debtor who files for bankruptcy or to the bankruptcy trustee. By contrast, Section III of this article discusses an Eleventh Circuit case holding that section 542(a) uses the specialist's understanding of property and thus requires such a creditor to deliver (turnover), not possession of such goods, but only the debtor's rights with respect to those goods. The Eleventh Circuit's reading of section 542(a) receives scholarly support from Professor Thomas Plank. The Eleventh Circuit and Professor Plank raise a strong challenge to the majority view about section 542(a) and turnover of property to the bankruptcy estate. There are, however, also strong arguments in defense of the majority view. This article does not seek to make the case for either view. Rather than try to resolve the debate about the best reading of section 542(a), the goal of this article is simply to encourage courts to engage the question. Instead of engaging this important question of federal law, courts have been led astray by another topic, different laws in different states. Section IV of this article critiques these cases and explains why variations in state law are not relevant to bankruptcy cases of goods that have been repossessed but not yet sold at foreclosure. This article concludes with the hope that courts will stop being led astray by irrelevant variations in state law and confront the task of determining the best reading of Bankruptcy Code section 542(a).

Arbitration clauses now appear in many of the form contracts through which consumers obtain goods, services and credit. This article considers the effect on prices of two sorts of judicial decisions: (1) decisions making consumer arbitration clauses generally enforceable, and (2) decisions refusing to enforce arbitration clauses that lack certain pro-consumer features.

A forthcoming article, Christine Jolls, Accommodation Mandates, 53 Stan. L. Rev., provides a framework for analyzing the effects of employment discrimination statutes. This article extends that framework to employment arbitration to describe the effects of enforcement of employees' pre-dispute arbitration agreements. The article also critically reviews empirical studies of these effects.

This Article considers the extent to which the creation of law has been privatized through arbitration. It suggests that, under Supreme Court cases and other current legal doctrine, vast areas of law are privatizable and that this degree of privatization is possible only through arbitration. The implications of this point are separated along the familiar line between mandatory rules of law and default rules. The first implication is that arbitration jeopardizes mandatory rules of law. To preserve the mandatory effect of these rules, the Supreme Court must make a choice. The Court must either reverse its decisions that claims arising under otherwise mandatory rules are arbitrable, or require de novo judicial review of arbitrators' legal rulings on such claims. The second implication is that claims arising under default rules should be arbitrable and completely free from judicial review for errors of law. The arbitration of claims arising under default rules presents an opportunity to privatize the creation of vast areas of law. It is an opportunity to create private legal systems of unwritten norms, written rules, and the precedents of private courts.