Last Week In Lawyerin’

You may have heard last week about the Supreme Court’s decision in AT&T Mobility v. Concepcion.
The punchline was that corporations will now have a much easier time avoiding consumer class actions and forcing consumers into single-claim arbitration. All it will apparently take is a carefully worded clause in one of those long wordypaper things you always have to sign whenever you want to buy an iPhone or a car or a what-have-ye (assuming you can still find a five-n-dime with what-have-ye in stock, which is why I usually end up getting mine on e-Bay in gently used condition).

Yes, the news is as bad as it is predictable with this Court. But the world should know how the Scalia majority reached its conclusion, and it seems to me that’s what people haven’t heard much about. Probably because it is near impossible to distill the full contents of an entire Supreme Court opinion down to the size of an article or blogpost fit for a 21st-century audience without a major sacrifice of journalistic integrity.

Lucky for y’all, it just so happens I’m a lawyer – not a journalist. Even at that rate, I realize I’m taking up some major blogspace in relaying the Balczak take:

The Federal Arbitration Act says you have to enforce arbitration clauses in contracts unless they run afoul of a state law aimed at governing the general enforceability of any contract, i.e. not a law specifically aimed at gutting arbitration clauses.

AT&T’s contract in this case said you had to take disputes to arbitration AND ALSO you could not bring your claim as a class action – even in arbitration.

California has a general law against “unconscionable” contracts, that is, contracts which grossly abuse unequal bargaining power between the parties. California courts have held that this law nullifies consumer contracts waiving the right to participate in small-claim class actions like the one the Concepcions wanted to pursue against AT&T.

So Scalia’s majority of usual suspects – you know, the ones who like to pay lip service to notions like states’ rights, strict construction, etc. – ponder forth that class actions “just don’t work” in an arbitration context, so that if a state law says you can’t waive a class action, it’s essentially saying you can’t go to arbitration and is therefore one of those bad state laws aimed at gutting arbitration that we don’t like.

Yeah, that’s it. Class actions are fundamentally incompatible with arbitration, see…and even though we’ve just written several pages’ worth about how federal law commands our deference to the almighty institution of arbitration, we just now remembered that it wasn’t meant for disputes brought by a whole class. Yeah, those arbitrators? Hands down better than judges in one-on-one disputes, but give them a whole big bunch o’ folks with claims and they’d drown in a glass of water. Never mind the American Arbitration Assocation stats cited in Breyer’s dissent on how they do class action arbitrations all the time, and how it’s really not a big deal. Never mind the California law’s allowance for class action arbitration. We all know it’s really code for “you can’t compel arbitration.” We know because our Federalist Society Secret Decoder Rings tell us so. Ergo, Federal Arbitration Act PRE-EMPTS your state law, mothafuckahh!!

It was at this point in the majority opinion there came a loud ZAP! sound followed by lots of smoke, cursing and justices shouting “OW!!! My Finger!!!!” The opinion ends with Scalia’s dicta, “Note to Self: remove Federalist Society Secret Decoder Ring before invoking federal pre-emption doctrine to strike down state law.”

So here’s the headline you probably didn’t see: Reagan/Bush Court Bloc Expands Scope Of Federal Law To Override States’ Rights.

Show THAT to your Red State PawPaw and see if his head doesn’t explode.

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