Issue: (1) Whether the Federal Arbitration Act preempts a California rule that would condition enforcement of arbitration agreements upon a pre-arbitration, judicial determination that the arbitration agreement, as applied, provides for judicially imposed standards for accessibility, informality, and affordability unique to certain statutory claims notwithstanding the U.S. Supreme Court’s recent prior decisions in AT&T Mobility LLC v. Concepcion (precluding states from requiring arbitration procedures inconsistent with the FAA, even if based on public policy considerations) and American Express Co. v. Italian Colors Restaurant (“the FAA’s command to enforce arbitration agreements trumps any interest in ensuring the prosecution of low-value claims”); and (2) whether the Federal Arbitration Act preempts
California efforts to invent and apply a new
unconscionability test (“unreasonably one-sided”), in
lieu of the unconscionability test generally applicable
in California (“shocks the conscience”), notwithstanding
the plain language of Section 2 of the
FAA that limits defenses to arbitration agreement
enforcement to “such grounds as exist at law or
in equity for the revocation of any contract”
and precludes defenses to arbitration enforcement
that apply uniquely to arbitration agreements.
Wondering how it went; what to learn from looking back; the importance of moot courts; and why the regular presence of cameras at oral argument is a bad idea. “Just the way they say, ‘Battle plans never survive contact with the enemy,’ oral argument plans never survive contact with the Court.” In this six-part interview, Eric Schnapper […]
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Sigma Delta Chi
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National Press Club Award
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