Arbitration's Summer Soldiers Marching into Fall: Another Look at Eisenberg, Miller, and Sherwin's Empirical Study of Arbitration Clauses in Consumer and Nonconsumer Contracts

Our empirical study examines the role and importance of arbitration clauses in standard form contracts, primarily with other businesses. While much has been written about the impact of mandatory arbitration clauses in consumer contracts, relatively little has been written on mandatory arbitration clauses in customer agreements where the customer was a business and not an individual consumer. In this Article, we specifically address the findings presented in Theodore Eisenberg, Geoffrey Miller, and Emily Sherwin’s study, Arbitration’s Summer Soldiers: An Empirical Study of Arbitration Clauses in Consumer and Nonconsumer Contracts.1 Our study finds that many businesses employ mandatory arbitration clauses in their customer contracts with other businesses. Our study also suggests that the primary reason for mandatory arbitration clauses in customer contracts where the customer is a business is the avoidance of expenses associated with litigation. Our study may help companies to better understand attitudes about arbitration and assist in contract negotiations. The results of our study may also help courts determine whether arbitration clauses in merchant form agreements––and changes to those clauses––are “material” under section 2-207(2) of the Uniform Commercial Code.