First Page
129
Last Page
164
Document Type
Article
Abstract
The clear trajectory over the last 100 years has been for judges to become increasingly more favorable toward sending disputes to compelled arbitration and enforcing arbitration awards. This results in a modern widespread proliferation of compelled arbitration that has become increasingly controversial. Some have alleged that the steady trend toward courts favoring compelled arbitration is the result of a corresponding building up of trust among judges in the arbitration process. This Article posits an alternative theory: Namely, judges face immense incentives to clear their dockets, and compelled arbitration is a highly efficient tool to that end. Exploring the historical trajectory of arbitration enforcement and the role that judicial work avoidance psychology may have played sheds light on numerous aspects of the U.S. legal system. Furthermore, by providing a valuable framework to assess the docket-clearing motive in judicial behavior, a more accurate understanding of the judiciary is illuminated. This will likely serve as a powerful catalyst to spark future discussion in various other areas of judicial decision-making and public policy issues. Finally, this Article provides a more solid ground for the consideration of how judicial behaviors can have dramatic unintended consequences, as increasing judicial favoritism of arbitration has resulted in more aggressive arbitration clauses and consequently more consumers who are denied their right to trial based on clauses they are largely unaware they even consented to.
Recommended Citation
Michael Conklin
Benchmarked for Arbitration: Work Avoidance as an Explanation for Why Judges Have Become Increasingly Favorable Toward Compelled Arbitration,
2024 Pepp. L. Rev.
129
(2024)
Available at:
https://digitalcommons.pepperdine.edu/plr/vol2024/iss1/6
