{"title":"AT&T Mobility v. Concepcion and the Antidiscrimination Theory of FAA Preemption","authors":"Hiro N. Aragaki","doi":"10.2139/SSRN.2046453","DOIUrl":"https://doi.org/10.2139/SSRN.2046453","url":null,"abstract":"This paper offers an alternative interpretation and critique of AT&T Mobility v. Concepcion, 131 S. Ct. 1740 (2011). The received wisdom is that Concepcion takes to unwarranted extremes two policies underlying Federal arbitration law: the policy to respect arbitration's status as a \"creature of contract,\" and the policy to favor arbitration. In the main, commentators have argued that these policies have been over-exaggerated and have no sound foundation in the Federal Arbitration Act.I offer a different account of Concepcion. In my view, Concepcion signals not a magnification of the traditional justifications for FAA preemption but rather a break from them. The case brings to the fore what I have elsewhere described as the antidiscrimination model of FAA preemption. Understanding how that model played out during the litigation of Concepcion and how it undergirds the majority opinion, I argue, provides a more comprehensive basis for critiquing Concepcion and its implications for future FAA preemption cases.","PeriodicalId":405630,"journal":{"name":"LSN: Contract Litigation","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-04-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124560768","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Structure of the Law on Multiparty-Situations in the 2009 Draft Common Frame of Reference and Belgian Law","authors":"M. Storme","doi":"10.2139/ssrn.2871103","DOIUrl":"https://doi.org/10.2139/ssrn.2871103","url":null,"abstract":"The purpose of this contribution is to provide a comparative analysis of the treatment of multiparty-situations in the Draft Common Frame of Reference (DCFR) and Belgian law.","PeriodicalId":405630,"journal":{"name":"LSN: Contract Litigation","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122160482","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Continuing Voice of Dissent: Justice Thomas and the Federal Arbitration Act","authors":"Brian Farkas","doi":"10.2139/ssrn.3006415","DOIUrl":"https://doi.org/10.2139/ssrn.3006415","url":null,"abstract":"Since 1984, a majority of the Supreme Court has held that the Federal Arbitration Act (“FAA”) preempts conflicting state arbitration laws, and that the FAA must be applied in state courts. Consequently, federal courts have invalidated many states’ attempts to regulate arbitration. This reality has shaped American arbitration law for over three decades. Justice Clarence Thomas has vigorously fought against this approach to arbitration policy since he joined the Supreme Court. Indeed, he has been among the most vocal and consistent opponents of the application of the FAA in state court proceedings. Yet his voice has always been in dissent, most recently in the December 2015 decision in DIRECTV, Inc. v. Imburgia. This Article represents the most comprehensive examination to date of Justice Thomas’ views on both the FAA and arbitration more broadly. Beginning with a background on the FAA’s history and the Supreme Court’s arbitration jurisprudence, it explores his unique judicial philosophy and its intersection with arbitration policy. In an area of procedural law that evades facile labels of ‘liberal’ and ‘conservative,’ Justice Thomas shows the ways in which a conservative preference for states’ rights can actually lead to liberal procedural and substantive outcomes.","PeriodicalId":405630,"journal":{"name":"LSN: Contract Litigation","volume":"88 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114547939","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}