Arbitration Decision Suggests SCOTUS Majority Are Pro-Business More Than Jurisprudential Conservatives
By Mike Dorf On Wednesday, the Supreme Court handed down a 5-4 ruling in AT&T Mobility LLC v. Concepcion . In an opinion by Justice Scalia, the Court found that the Federal Arbitration Act (FAA) preempts California's contract rule treating class action waivers as unconscionable (where the individual harm is not large enough for the typical claimant to file suit). The opinion is unpersuasive. Indeed, the case is arresting because the Court's ruling runs away from principles that conservatives purport to value in other contexts. First, a brief recap of the issue. The petitioner (an entity I shall oversimplify by calling AT&T) advertised a "free" cell phone, but subscribers were charged roughly $30 as a tax on the retail value of the phone. Subscribers brought a class action in federal district court alleging false advertising (and other claims) to recover the tax and other relief. AT&T sought to compel arbitration, citing the agree...