AT&T Mobility v. Concepcion and the Antidiscrimination Theory of FAA Preemption
4 Y.B. Arb. & Med. 39 (2013)
42 Pages Posted: 28 Apr 2012 Last revised: 8 Apr 2015
Date Written: April 26, 2012
This paper offers an alternative interpretation and critique of AT&T Mobility v. Concepcion, 131 S. Ct. 1740 (2011). The received wisdom is that Concepcion takes to unwarranted extremes two policies underlying Federal arbitration law: the policy to respect arbitration's status as a "creature of contract," and the policy to favor arbitration. In the main, commentators have argued that these policies have been over-exaggerated and have no sound foundation in the Federal Arbitration Act.
I offer a different account of Concepcion. In my view, Concepcion signals not a magnification of the traditional justifications for FAA preemption but rather a break from them. The case brings to the fore what I have elsewhere described as the antidiscrimination model of FAA preemption. Understanding how that model played out during the litigation of Concepcion and how it undergirds the majority opinion, I argue, provides a more comprehensive basis for critiquing Concepcion and its implications for future FAA preemption cases.
Keywords: arbitration, class action, class Arbitration, AT&T mobility, concepcion, federal arbitration act, FAA, FAA Preemption, federal preemption, supreme court, antidiscrimination
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