Second Circuit Review

Contracting in the Digital Age: The Second Circuit and Arbitration Clause Enforceability

, New York Law Journal


In their Second Circuit Review, Martin Flumenbaum and Brad S. Karp write: Over the past year and a half, the circuit, along with the Southern District, have issued three important decisions interpreting arbitration clause enforceability in both the consumer and employment contexts. At first glance, these decisions all seem to turn on practical considerations, tracking factors like the prominence of the arbitration clause. But arbitration enforceability is not merely an empirical inquiry. In fact, the recent opinions analyze these practical factors to underscore a more fundamental judicial concern: preserving the integrity of contractual bargaining.

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