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All Alone in Arbitration: AT&T Mobility v. Concepcion and the Substantive Impact of Class Action Waivers

April 27, 2011, the Supreme Court announced its decision in AT&T
Mobility LLC v. Concepcion
, one of the most closely
watched cases of the 2010 Term. In Concepcion, the Court
considered whether states may condition the enforceability of arbitration
agreements on the availability of class-wide arbitration proceedings.
While the subject of class arbitration is rarely viewed as a headline-grabbing
legal topic, Concepcion attracted the attention of many consumer
advocates, corporate counsel, and procedural scholars because of its
far-reaching implications for consumer and employment contracts and
class action policy. Ultimately, the Court held that
the Federal Arbitration Act (FAA) preempts states from invalidating
class action waivers in arbitration agreements because these invalidations
stand as an obstacle to the purposes behind the FAA.

this result surprising? Not in the least. Indeed, given
the increasingly predictable road the Court had taken in previous FAA
cases, a contrary ruling exhibiting deference to a state’s
views on arbitration would have represented an abrupt tug on the FAA
steering wheel. But leaving the Court’s track record aside,
was the Court’s decision to limit the role of states in shaping class
action policy a legally sound and principled conclusion? In this
Comment, I argue that it was not. Because class actions are so
intimately linked to the vindication of substantive rights, the Court
should not have unilaterally made a policy decision as to when the use
of class proceedings is appropriate.

class action policy discussions typically focus on the efficacy of class
action litigation or the inner workings of Rule 23 of the
Federal Rules of Civil Procedure, Concepcion did
not directly involve either of these topics. Instead, Concepcion

centered on the class action’s close cousin, class arbitration—proceedings
involving similarly situated litigants that occur before an arbitrator,
rather than before a judge or jury in court. While the development
of class arbitration was still in its embryonic stages, several judges
and businesses adopted the view that this method of dispute resolution
was antithetical to the whole point of arbitrating in the first place,
which is to provide a speedy and efficient alternative to litigation.
Eventually, with the addition of more claimants and in light of the
uncertainty surrounding this new form of aggregate procedure, class
arbitration became what was described as “a lose-lose proposition”
to which “no rational business [would] agree.”