Law Commons^™

Expanding The Scope Of The Federal Arbitration Act: An Examination Of The Seventh Circuit's Opinion In Green V. U.S. Cash Advance, Illinois, Llc, Christine L. Milkowski

Seventh Circuit Review

The Roberts Court's expansive interpretation of the Federal Arbitration Act (FAA) has ushered in a new era of pro-arbitration jurisprudence, allowing lower courts to categorically enforce arbitration agreements. Underlying this zealous application is Section 2 of the FAA, which states that arbitration agreements are "valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of a contract."

In Green v. U.S. Cash Advance, Illinois, LLC, the Seventh Circuit enforced an arbitration agreement between a consumer and payday lender, despite the fact that the named arbitration forum had been unavailable since the …

Is The Antidiscrimination Project Being Ended?, Michael J. Zimmer

Indiana Journal of Law and Social Equality

No abstract provided.

To Skin A Cat: Qui Tam Actions As A State Legislative Response To Concepcion, Janet Cooper Alexander

University of Michigan Journal of Law Reform

The Supreme Court's decision in Concepcion is widely regarded as heralding the demise of small-claims class actions whenever contracts of adhesion are involved in the transaction-which means for virtually all consumer and employment claims. Amending the Federal Arbitration Act to overturn Concepcion would be a relatively simple exercise in legislative drafting, but in the current political climate such efforts are unlikely to succeed. Thus far, proposed federal corrective legislation has failed to pass, and federal agency regulation of class waivers has been lacking. State legislatures might have the political ability to pass corrective legislation, but virtually all state limitations on …

Concepcion's Pro-Defendant Biasing Of The Arbitration Process: The Class Counsel Solution, David Korn, David Rosenberg

University of Michigan Journal of Law Reform

By mandating that numerous plaintiffs litigate their common question claims separately in individual arbitrations rather than jointly in class action arbitrations, the Supreme Court in AT&T Mobility LLC v. Concepcion entrenched a potent structural and systemic bias in favor of defendants. The bias arises from the parties' divergent stakes in the outcome of the common question litigation in individual arbitrations: each plaintiff will only invest to maximize the value of his or her own claim, but the defendant has an incentive to protect its entire exposure and thus will have a classwide incentive to invest more in contesting common questions. …

Arbitration Case Law Update 2013, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

The U.S. Supreme Court and lower state and federal courts continue to decide cases under the Federal Arbitration Act (FAA) at an astounding rate. This chapter summarizes Supreme Court opinions over the past year that interpret the FAA, as well as selected lower court decisions that apply the FAA and could have an impact on securities arbitration practice.

At&T V. Concepcion: The Problem Of A False Majority, Lisa Tripp, Evan R. Hanson

Lisa Tripp

The Supreme Court’s 2011 decision in AT&T v. Concepcion is the first case where the Supreme Court explores the interplay between state law unconscionability doctrine and the vast preemptive power of the Federal Arbitration Act (FAA). Although it is considered by many to be a landmark decision which has the potential for greatly expanding the already impressive preemptive power of the FAA, something is amiss with Concepcion.

AT&T v. Concepcion is ostensibly a 5-4 majority decision with a concurring opinion. However, the differences in the majority and concurring opinions are so profound that it appears that Justice Thomas actually …

Beyond The Self-Execution Analysis: Rationalizing Constitutional, Treaty And Statutory Interpretation In International Commercial Arbitration, S. I. Strong

Faculty Publications

International commercial arbitration has long been considered one of the paradigmatic forms of private international law and has achieved a degree of legitimacy that is virtually unparalleled in the international realm. However, significant questions have recently begun to arise about the device’s public international attributes, stemming largely from a circuit split regarding the nature of the New York Convention, the leading treaty in the field, and Chapter 2 of the Federal Arbitration Act, which helps give effect to the Convention in the United States. Efforts have been made to place the debate about the New York Convention within the context …

The Price Of Justice: An Analysis Of The Costs That Are Appropriately Considered In A Cost-Based Vindication Of Statutory Rights Defense To An Arbitration Agreement, Ramona L. Lampley

Faculty Articles

In the wake of AT&T Mobility LLC v. Concepcion, parties opposing enforcement of an arbitration agreement with a class waiver increasingly relied on the prohibitive-costs-based vindication of statutory rights defense. The Supreme Court recently held in American Express Co. v. Italian Colors Restaurant that the effective vindication doctrine cannot be used to invalidate an otherwise enforceable arbitration agreement with class-action waiver simply because the opponents have no “economic incentive” to pursue individual arbitration. However, the Court's bases for this holding are unclear and unnecessarily call into question the very existence of the “effective vindication doctrine.” This Article examines the historical …

Protecting The Right Of Citizens To Aggregate Small Claims Against Businesses, Paul D. Carrington

University of Michigan Journal of Law Reform

Two years ago I ranted against the Supreme Court's subversion of the Rules Enabling Act and its opposition to the benign aims of the twentieth-century progressive law reformers expressed summarily in Rule 1 of our Federal Rules of Civil Procedure. I observed then that the majority of the Justices of the Supreme Court appeared to have joined the Chamber of Commerce, aligning themselves also with Vice President Dan Quayle's 1989 Council on Competitiveness that denounced effective civil procedure as an enemy of economic development. I was then commenting adversely on what the Court had done to transform Rule 8. I …