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58 Ariz. L. Rev. 213 (2016)
Remedy Realities in Business-to-Consumer Contracting

handle is hein.journals/arz58 and id is 221 raw text is: REMEDY REALITIES IN BUSINESS-TO- CONSUMER CONTRACTING Amy J. Schmitz* Professor Jean Braucher greatly contributed to the exploration of consumer and contract law by questioning how the law operates in the real world and highlighting the importance of law in action. In recognition of that contribution, this Article focuses on law in action with respect to consumers' quest to obtain remedies regarding their business-to-consumers (B2C) contracts. Currently, consumers often have no practical recourse with respect to B2C purchase problems due to the complexity, cost, and inconvenience of the processes for obtaining remedies. Accordingly, stated legal rights become meaningless for individuals living in the real world. This Article, therefore, explores access to consumer remedies and proposes ideas for expanding that access through development offair and efficient online dispute resolution (ODR) processes. TABLE OF CONTENTS INTRODUCTION ..................... 214 I. LEGAL LIMITATIONS ON ACCESS TO REMEDIES ........................... 217 A. Resistance to Substantive Consumer Protections ...................217 B. Proliferation of Arbitration Clauses Precluding Class Proceedings...........220 1. Strict Enforcement of Individualized Arbitration ......... ..........221 2. Limited Utility of Arbitration for Consumers ....................224 C. Cautions on Class Actions and Other Complaint Processes ...... .....226 II. LIFE LIMITATIONS AND BUSINESS BEHAVIORS THAT HINDER CONSUMER ACTION .......................................................... 230 A. Consumers' Predisposition Against Pro-action.....................230 B. Business Behaviors Hindering Consumer Action.......................233 C. Market Failures and Information Frailties.. ..............................238 III. SUBSTANTIVE REFORMS AIMED TO MAKE REMEDIES REAL...........................241 * Professor of Law, University of Colorado School of Law. I thank Dean Marc Miller, David Wohl, Barak Orbach, all the participants in the Jean Braucher Symposium, and the entire University of Arizona James E. Rogers College of Law community. I also thank Pamela Foohey, Erik Gerding, Peter Huang, Mark Lowenstein, Andrew Schwartz, and William Whitford for their insightful comments. Additional thanks to Alex Gano and Jasmine Rodenburg for their research assistance.