Abstract:
This Comment discusses the state courts’ response to AT&T Mobility LLC v Concepcion. In that case, the United States Supreme Court held that the Federal Arbitration Act preempts the use of unconscionability doctrine to invalidate arbitration clauses that foreclose classwide remedies. Part I of this Comment catalogues recent state-court approaches to forced-arbitration clauses, focusing in particular on four arguments: (1) Concepcion bars the use of unconscionability doctrine only when the application of that doctrine would interfere with the “fundamental attributes of arbitration”; (2) Concepcion applies to categorical but not case-by-case unconscionability analysis; (3) Concepcion does not prevent state courts from interrogating the conscionability of the formation of the entire contract; and (4) “arbitration” might be defined narrowly so as to limit the scope of FAA preemption. Building on these theories, Part II suggests a more ambitious avenue for innovation within the space left open by Concepcion. By applying duress doctrine to certain contracts containing forced-arbitration clauses, judges may be able to protect lay claimants while still remaining faithful to Supreme Court precedent.
Dawson, James, Contract After Concepcion: Some Lessons from the State Courts (October 17, 2014). Yale Law Journal, Vol 124, No 1, 2014.
First posted 2014-10-22 06:35:57
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