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    FAA Preemption after Concepcion

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    FAA Preemption after Concepcion Abstract.pdf (206.9Kb)
    Issue Date
    2014-04-24
    Author
    Drahozal, Christopher R.
    Type
    Article
    Article Version
    Scholarly/refereed, author accepted manuscript
    Version
    http://ssrn.com/abstract=2446185
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    Abstract
    AT&T Mobility LLC v. Concepcion is an important case for its holding that the FAA preempts application of state unconscionability doctrine to invalidate an arbitration clause with a class arbitration waiver. But in a number of respects, the effect of Concepcion has been overstated, including its effect on application of state unconscionability doctrine to arbitration clauses. Concepcion does not preempt all or even most state unconscionability doctrine as applied to arbitration agreements. Properly construed, Concepcion preempts state unconscionability doctrine only when that doctrine conditions enforcement of arbitration agreements on procedures inconsistent with “fundamental attributes of arbitration” of the sort illustrated in Concepcion itself ― such as the use of juries, court-monitored discovery, evidentiary rules, and, of course, class arbitration. If, however, the Supreme Court were to construe Concepcion more broadly (or eliminate application of unconscionability to invalidate arbitration clauses altogether), courts would retain some residual authority to police the fairness of arbitration clauses, but only by finding a dispute resolution process not to be arbitration at all.
    URI
    http://hdl.handle.net/1808/19797
    Collections
    • Law School Scholarly Works [621]
    Citation
    Drahozal, Christopher R., FAA Preemption after Concepcion (April 21, 2014). Berkeley Journal of Employment and Labor Law, Vol. 35, p. 153, 2014, Forthcoming.

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    Contact KU ScholarWorks
    785-864-8983
    KU Libraries
    1425 Jayhawk Blvd
    Lawrence, KS 66045
    785-864-8983

    KU Libraries
    1425 Jayhawk Blvd
    Lawrence, KS 66045
    Image Credits
     

     

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