Adhesive Forum Selection Agreements and Access to Justice: The Function and Limits of Anti-Waiver Protections

Abstract The enforcement of forum selection and arbitration agreements against consumers and other parties in disadvantaged bargaining positions has significant consequences for access to justice. As a result, some legal systems simply decline to enforce jurisdictional agreements against certain groups. This is not the case in the United States. To the contrary, such agreements enjoy a strong presumption of enforceability across the board. As a result, the ability of individual parties to secure remedies for violations of their legal rights is significantly curtailed. Because private enforcement plays such an important role in state and federal regulatory regimes, impairing the ability of individual litigants to sue also erodes the accountability of corporations for violations of law. This Article begins with the understanding that jurisdictional agreements constitute contractual waivers of rights. This highlights the two primary sources of law that can be used to police them: contract law and “anti-waiver” rules and doctrine. The Article considers each in turn. It concludes that contract law no longer provides a meaningful constraint on the use of adhesive jurisdictional agreements, but that anti-waiver rules at the state level may.