When a legal rule is imprecise, but nonetheless emphatic, I sometimes encourage my students to ask how many times the word “really” should appear in the rule statement. For example, although freedom of contract is a very powerful premise, equitable enforcement may be denied if the agreed exchange is grossly (i.e., “really, really”) unfair. On the other hand, a contract may be unenforceable in its entirety if it is unconscionable (i.e., “really, really, really” unfair). I hope my students are sufficiently amused to keep paying attention, but I am also trying to make a point. “Really” is obviously not a unit of measure, but it is a common way that non-lawyers attempt to specify degrees of emphasis.
I was reminded of this by the recent opinion of the California First District Court of Appeal in Ajamian v. CantorC02e, 12 C.D.O.S. 2025. The Ajamian case involves the controversial subject of mandatory, binding arbitration clauses included in contacts of adhesion. It addresses a critically important question: what makes some such clauses unconscionable and therefore, unenforceable? More specifically still, it focuses on a question that, perhaps more than any other, captures the gist of the public policy debate about privatizing dispute resolution: who should decide what is unconscionable, the arbitrator or a court? More about the opinion later; first, a more general question.
Why is there so much Litigation about Arbitration?
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.
For questions call 1-877-256-2472 or contact us at [email protected]
