Only the Rich Can Afford a Remedy: The Unconscionable Enforcement of Arbitration Provisions against the Indigent

Abstract

In Overstreet v. Contigroup Cos., Inc.,2 the Fifth Circuit Court of Appeals held that neither economic disadvantage nor undisclosed arbitration fees may form the basis for striking down an arbitration provision on the grounds of unconscionability.3 While the Supreme Court and the Federal Arbitration Act (FAA) expressly authorize the use of the doctrine of unconscionability to invalidate arbitration provisions, courts are sharply divided on its proper application. 4 The difficult juxtaposition of the Supreme Court\u27s interpretation of the FAA as a liberal federal policy favoring arbitration and the traditional application of unconscionability as a means of policing unfair contracts has produced a significant amount of disagreement and confusion among the states.5 This Note addresses the Fifth Circuit\u27s application of the doctrine of unconscionability under Georgia law and argues that the court not only misapplied Georgia law but rendered a holding that both disregards the foundational public policy behind the doctrine of unconscionability and does violence to the fundamental right to due process of law