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Purpose, Precedent, and Politics: Why Concepcion Covers Less than You Think

Yearbook on Arbitration & Mediation, Vol. 4, p. 126, 2012

Pepperdine University Legal Studies Research Paper No. 2012/9

21 Pages Posted: 14 Mar 2012 Last revised: 25 Mar 2013

Michael A. Helfand

Pepperdine University School of Law

Date Written: 2012

Abstract

This article sketches some possible limitations on the impact AT&T Mobility v. Concepcion will have going forward. While many have seen the Supreme Court’s decision as simultaneously signaling an end to the viability of class action lawsuits and undermining principles of federalism, there may be reasons to believe that it will not have implications quite so far reaching. Specifically, this article proposes three reasons why Concepcion’s impact may be limited. First, the decision lends itself to a more narrow reading, which simply demands that courts take the entire of an arbitration agreement into account before deploying common law defenses to render them invalid. Second, Justice Thomas’s concurrence may limit the precedential value of Concepcion by narrowing the Court’s holding to cases where the defense speaks to the revocation of an otherwise valid agreement as opposed to where the defense speaks to a failure of the agreement’s formation. Third, state courts may demonstrate increasing willingness to chip away at Concepcion by narrowly construing its holding. Such a willingness may flow from a recognition that Concepcion’s five-justice majority is deeply divided on the applicability of the Federal Arbitration Act to state courts, making it unlikely that the Court would ever reverse state court decisions that employed aggressive use of state laws to invalidate an arbitration agreement.

Keywords: Concepcion, AT&T, Supreme Court, class action, federalism, arbitration, arbitration agreement, validity, invalidate, precedent, revoke, revocation, Federal Arbitration Act, FAA, dispute, applicability, state courts, common law, consumer, business, corporation, Discover Bank Rule

Suggested Citation

Helfand, Michael A., Purpose, Precedent, and Politics: Why Concepcion Covers Less than You Think (2012). Yearbook on Arbitration & Mediation, Vol. 4, p. 126, 2012 ; Pepperdine University Legal Studies Research Paper No. 2012/9. Available at SSRN: https://ssrn.com/abstract=2022564

Michael Helfand (Contact Author)

Pepperdine University School of Law ( email )

24255 Pacific Coast Highway
Malibu, CA 90263
United States

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