Class Arbitration Waivers Cannot Be Found Unconscionable: A Pervasive and Common "Mis-Concepcion"
In 1925, Congress enacted the Federal Arbitration Act (FAA) as a means of quelling judicial hostility towards arbitration agreements, providing a mechanism for the enforcement of such agreements. The Supreme Court’s treatment and application of the FAA has evolved over time, and in recent decades the FAA has been massively extended to cover not only arm’s-length commercial transactions, but consumer and employment contracts as well. The Supreme Court, its previous hostile stance long forgotten, has created a policy of favoring arbitration and striking down many an argument that may interfere with that policy. In particular, the Court solidified its position in AT&T Mobility LLC v. Concepcion that class arbitration waivers may not be found substantively unconscionable. As a result, large corporations have extraordinary latitude to insulate themselves from liability to their customers and employees, who often cannot hope to take on the time commitments and economic burdens of individual arbitration.
This Note reexamines the Concepcion holding in light of the FAA’s purpose and text, contemporary ramifications, and social justice considerations. Ultimately, this Note makes a case for constraining the Court’s treatment of class arbitration waivers in order to allow for a finding of substantive unconscionability when circumstances demand it.
Class Arbitration Waivers Cannot Be Found Unconscionable: A Pervasive and Common "Mis-Concepcion",
Nw. U. L. Rev.