Tsunami: AT&T Mobility v. Concepcion Impedes Access to Justice

Abstract

This essay explores the policy implications of the Supreme Court’s recent 5-4 decision in AT&T Mobility v. Concepcion. Concepcion held that lower courts’ use of California’s Discover Bank rule to hold unconscionable a class action waiver contained in an arbitration clause was preempted by the Federal Arbitration Act. Following the decision, commentators observed that the impact of the decision would depend on how narrowly or broadly the holding would be interpreted by lower courts. After examining post-Concepcion lower court decisions focused on the validity of arbitral class action waivers this essay finds that that most courts are interpreting Concepcion broadly, thereby dooming most unconscionability attacks on arbitral class action waivers. The essay then explores the policy implications of this trend. It suggests that if not legislatively or administratively limited Concepcion will substantially harm consumers, employees, and perhaps others by permitting companies to use arbitration clauses to exempt themselves from class actions, thereby giving them free rein to engage in fraud, torts, discrimination, and other harmful acts.