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1.1.1 Introduction

This treatise covers one of the most active areas of consumer litigation today: the enforceability of arbitration agreements entered into before any dispute has arisen between the parties. This treatise focuses on how consumers can, in some situations, avoid being forced into arbitration and instead retain their constitutional right to litigate their claims in court. This area of consumer law is important and constantly evolving not only because of the increasing prevalence of arbitration clauses but also because the Consumer Financial Protection Bureau (CFPB) is currently considering rules that would make the forced arbitration landscape considerably different for consumers, including by prohibiting many entities within its jurisdiction from using forced arbitration clauses to prevent class actions.

The treatise surveys current theories and selected case law. Comprehensiveness is beyond the scope of this or any publication, not only because new cases are reported on a weekly basis but also because of the great variation in arbitration clauses and in the underlying transactions.