AT&T Mobility v. Concepcion: Brief of Arbitration Professors as Amicus Curiae in Support of Respondents

Abstract

This brief is a natural extension of my research and writing over the past two years, which seeks to develop an antidiscrimination model of FAA section 2 preemption. The arguments in the brief originate, and are explored in greater depth in, my forthcoming piece, Equal Opportunity for Arbitration, 58 U.C.L.A. Law Review, Vol. 58 2011.

Petitioner (and Respondents) in this case have famed the FAA preemption issue in terms of antidiscrimination: That is, a state law is preempted if it "discriminates" against arbitration. Thus, the California Supreme Court's Discover Bank rule is preempted if it can be characterized as reviving the ancient judicial hostility toward arbitration.

This brief argues that the Petitioners' interpretation of this "antidiscrimination principle" is incorrect, and that the Discover Bank rule should not be preempted, for two reasons: 1) Although it has often been said that the FAA's purpose is to place arbitration agreements on the same footing as other agreements, the true purpose of doing so is to place arbtration on the same footing as litigation, so that it could emerge as a bona fide dispute resolution alternative. 2) Although lower courts frequently find statutes and judicial decisions preempted if they fail to apply literally to "all contracts," the all contracts standard is fundamentally incoherent and should be rejected.

Keywords: Arbitration, FAA, Federal Arbitration Act, Preemption, AT&T Mobility, Concepcion, Supreme Court