Legal Process in a Box, or What Class Action Waivers Teach Us About Law-Making

Abstract:     
The Supreme Court’s decision in AT&T Mobility v. Concepcion advanced an agenda found in neither the text nor the legislative history of the Federal Arbitration Act. Concepcion provoked a maelstrom of reactions not only from the press and the academy, but also from Congress, federal agencies and lower courts, as they struggled to interpret, apply, reverse, or cabin the Court’s blockbuster decision. These reactions raise a host of provocative questions about the relationships among the branches of government and between the Supreme Court and the lower courts. Among other questions, Concepcion and its aftermath force us to grapple with the relationship between law and politics, the role of legislative history in statutory interpretation, the meaning of legislative primacy, the influence of federal agencies on the development of the law, and competing conceptions of the relationship between the Supreme Court and the lower courts.

Number of Pages in PDF File: 55

Keywords: arbitration, Chevron deference, class action waiver, Concepcion, consumer, institutional competency, judicial decision-making, law-making power, legislative acquiescence, legislative history, separation of powers, statutory interpretation, Supreme Court

JEL Classification: K40, K41

Accepted Paper Series