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Full-Text Articles in Law
Concepcion And Mis-Concepcion: Why Unconscionability Survives The Supreme Court's Arbitration Jurisprudence, Richard Frankel
Concepcion And Mis-Concepcion: Why Unconscionability Survives The Supreme Court's Arbitration Jurisprudence, Richard Frankel
Journal of Dispute Resolution
States have long relied on the doctrines of unconscionability and public policy to protect individuals against unfair terms in mandatory arbitration provisions. The Supreme Court recently struck a blow to such efforts in AT&T Mobility LLC v. Concepcion and American Express Co. v. Italian Colors Restaurant. In those two cases, the Court established that a challenge to the enforceability of unfairly one-sided arbitration clauses is preempted if it would interfere with "fundamental attributes of arbitration." Several commentators have argued that these decisions will dramatically alter the arbitration landscape, by wiping away virtually any contract defense to the validity of an …
Faa Law, Without The Activism: What If The Bellwether Cases Were Decided By A Truly Conservative Court, Richard C. Reuben
Faa Law, Without The Activism: What If The Bellwether Cases Were Decided By A Truly Conservative Court, Richard C. Reuben
Faculty Publications
The U.S. Supreme Court has decided an extraordinary number of cases under the Federal Arbitration Act in the last half century, a pattern that continues today at the pace of a case or two a year. During this time, Republican presidential candidates have made much political hay out of the Supreme Court, running against the Warren Court’s “liberal activism” by promising to appoint judges who would decide cases more conservatively. In this article, I analyze whether this promise has been fulfilled in the context of the Supreme Court’s FAA jurisprudence by identifying the core principles of judicial conservatism – restraint, …