Concepcion and Preemption Under the Federal Arbitration Act

Penn State Yearbook of Arbitration and Mediation, Forthcoming

25 Pages Posted: 6 Feb 2012 Last revised: 15 Feb 2012

See all articles by Ian D. Mitchell

Ian D. Mitchell

Northern Kentucky University - Salmon P. Chase College of Law

Richard A. Bales

Ohio Northern University - Pettit College of Law

Date Written: February 6, 2012

Abstract

The Supreme Court held in AT&T Mobility LLC v. Concepcion that a California law declaring class arbitration waivers unconscionable was preempted because it stood as an 'obstacle to the accomplishment and execution of the full purposes and objectives' of the Federal Arbitration Act. The Court’s Concepcion decision was necessarily based on implied preemption, because the FAA contains no express preemption clause and because there was no textual conflict between the FAA and the California law. Concepcion illustrates two fundamental problems with implied preemption: it violates federalism principles by permitting significant federal encroachment on state laws, and it violates separation-of-powers principles by permitting the Court to re-write federal statutes in accordance with the Court’s inferred (and arguable) interpretation of statutory purpose. This article argues that the Court’s preemption analysis in the FAA is wrong and that the FAA should preempt only textually inconsistent state laws.

Keywords: arbitration, concepcion, FAA, waiver, preemption, preempt, federalism, unconscionable

Suggested Citation

Mitchell, Ian D. and Bales, Richard A., Concepcion and Preemption Under the Federal Arbitration Act (February 6, 2012). Penn State Yearbook of Arbitration and Mediation, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2000183

Ian D. Mitchell

Northern Kentucky University - Salmon P. Chase College of Law ( email )

Nunn Hall
Highland Heights, KY 41099
United States

Richard A. Bales (Contact Author)

Ohio Northern University - Pettit College of Law ( email )

525 South Main Street
Ada, OH 45810
United States
419-772-2205 (Phone)

HOME PAGE: http://law.onu.edu/node/3073

Register to save articles to
your library

Register

Paper statistics

Downloads
213
Abstract Views
1,043
rank
143,018
PlumX Metrics