20 articles
It seems especially notable that despite the broad range of backgrounds of the contributors to this symposium, not a single author has even attempted to defend the reasoning or holding of Concepcion. The implications of that are both profound and troubling.
Terry Moritz, a senior partner at Goldberg Kohn Ltd. considers AT&T v. Concepcion for our on-line arbitration symposium. View the whole symposium here.
Thomas Carbonneau of Penn State School of Law argues that Rent-A-Center v. Jackson demonstrates the dangers of bootstrapping the articulation of doctrine.
Thomas Stipanowich of Pepperdine University School of Law considers themes in the Court’s recent arbitration decisions as well as Congress’s response to those decisions and offers suggestions for alternative process models.
Professor Welsh argues that the Court’s decision in AT&T Mobility v. Concepcion should be understood as its answer to a Congress that continues to funnel more cases to the federal courts while simultaneously underfunding and understaffing them. The Court is effectively providing an incentive for the private funding of a layer of judicial adjuncts to handle frequently occurring bilateral disputes between disparate parties, but it is doing so without clearly demanding structural safeguards to assure that bilateral arbitration is sufficiently attractive and fair.
The Supreme Court’s decision in Hall Street Associates v. Mattel, Inc., left open the question whether courts can vacate an arbitral award because of the arbitrator’s “manifest disregard” of the law. John Elwood examines the unsettled state of the law in the wake of that decision.
Steven Bennett examines Rent-A-Center v. Jackson and the severability rule, concluding that the full implications of the decision are yet to be determined.
Jean Sternlight of the University of Nevada-Las Vegas Boyd School of Law examines the lower courts’ decisions after Concepcion and concludes that most courts’ broad interpretations of the Court’s decision will lead to the demise of consumer and employment class actions and thereby allow companies to elude regulation.
Michael Rubin of Altshuler Berzon argues that although the decision in AT&T Mobility v. Concepcion has eliminated the most common ground for challenging class action prohibitions – state unconscionability law – nothing in the decision precludes plaintiffs from bringing new challenges resting on other statutory theories.
Lawrence Cunningham of George Washington University School of Law argues that the Court’s exuberant contract rhetoric in arbitration opinions poses hidden costs.
David Schwartz argues that the implications of the Court’s decision in AT&T Mobility v. Concepcion are staggering, and he suggests that getting upset about the Court’s decision in Wal-Mart v. Dukes would be like flipping out over a brief thundershower a few weeks after having slept through Hurricane Irene.
Jill Gross of Pace Law School analyzes the Court’s decision last term in AT&T Mobility v. Concepcion in the broader context of Federal Arbitration Act preemption jurisprudence and class arbitration.