The following post comes from Karen Halverson Cross at John Marshall Law School in Chicago.  Karen participated in the Works in Progress Conference last fall and this is the very timely paper following from it.

My paper, ”Letting the Arbitrator Decide?  Unconscionability and the Allocation of Authority between Courts and Arbitrators,” addresses a topic that soon will be reviewed by the Supreme Court in Rent-A-Center v. Jackson:  whether language in a standard form arbitration clause is effective to vest in the arbitrator the authority to rule on whether that arbitration agreement is unconscionable.  The paper argues that the Supreme Court should interpret the dictum in its previous First Options decision much more narrowly than it has been interpreted by the lower courts.  More generally, the paper also discusses a broader tendency in the case law to allocate to the arbitrator initial authority to rule on unconscionability challenges, and compares the U.S. approach to that of other developed countries.  The paper is available at :  http://ssrn.com/abstract=1552966.