May 3, 2010
Here is a link to an article (in which yours truly is quoted) covering the case: http://www.businessinsurance.com/article/20100502/ISSUE01/305029980. I had a nice chat about Jackson with Professor Stephen Ware at our 20th law school reunion this past weekend. After that discussion, I am torn about predicting the outcome of this case. I think that a result going either direction could be justified. I think the outcome turns on whether an unconscionability challenge is treated as a formation challenge (i.e. challenge to the arbitration agreement itself and whether it was properly formed) or as a post-formation challenge. I think the Court could avoid the Prima Paint problem (i.e. distinguish Prima Paint, the case where the Court found that a challenge based on fraudulent inducement had to go to arbitration because the parties challenged the container contract rather than the arbitration clause) because, in Jackson, the challenge is to the arbitration agreement not to a container contract.
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