When American Exceptionalism Isn’t Exceptional: Consumer Arbitration in the United States

Abstract

The United States takes a unique position in allowing binding pre-dispute arbitration clauses in consumer contracts. This article uses the failure to regulate or prohibit the use of pre-dispute arbitration provisions in nursing home agreements as a means of understanding the current state of pre-dispute arbitration clauses in consumer contracts in the United States. State laws or judicial rules that regulate arbitration clauses in nursing home contracts are routinely blocked by federal courts. Efforts in the U.S. Congress to prohibit such clauses in nursing home contracts have been unsuccessful.