However incomplete, unaggressive, or sub-optimal, unconscionability analysis of arbitration agreements has made something of a comeback in the late twentieth century and early twenty-first century. Just as nature abhors a vacuum, water seeks to be level, and ecosystems work to retain environmental stability, the legal system has witnessed an incremental effort by lower courts to soften the rough edges of the Supreme Court's pro-arbitration jurisprudence through rediscovery of what might be called the “unconscionability norm”--a collective judicial view as to what aspects of an arbitration arrangement are too unfair to merit judicial enforcement. In rediscovering and reinvigorating the unconscionability norm for arbitration law, the lower courts have begun to achieve an equilibrium of arbitrability.
How completely this equilibrium develops and how firmly it becomes established remain open questions that are subject to solidification or retrenchment based on the Supreme Court's future arbitration pronouncements. At this juncture, however, the seeming rediscovery of the unconscionability norm, however incomplete, in modern arbitration law reflects several significant points worth considering.
19 Ohio St. J. On Disp. Res. 757 (2004).
Stempel, Jeffrey W., "Arbitration, Unconscionability, and Equilibrium: The Return of Unconscionability Analysis as a Counterweight to Arbitration Formalism" (2004). Scholarly Works. Paper 228.