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Bootstraps on the Ground: A Response to Professor Leslie
Texas Law Review See Also (2016)
  • Richard H. Frankel
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.
  • dispute resolution,
  • arbitration,
  • contract,
  • jurisprudence,
  • civil procedure,
  • consumer,
  • litigation
Publication Date
Citation Information
94 Tex. L. Rev. See Also 188 (2016)