ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Thursday, November 11, 2010

Conceptions about AT&T v Concepcion

As Frank mentioned earlier, over at Concurring Opinions, Lawrence Cunningham (Geo Washington) provides a recap of the oral argument in AT&T v. Concepcion.  Cunningham wrote that the argument was "riveting."  Jean Sternlight (UNLV) described the case as potentially "momentous."  David Horton (Loyola - LA) anticipated that the case "should be a wild one."  What about Dahlia Lithwick at Slate?  She seemed peeved that she had to bother to report on it.  She begins her column: 

Every Supreme Court reporter waits—often in vain and for decades—for a case like AT&T Mobility v. ConcepcionIt is a case at the white-hot epicenter of three almost completely inexplicable doctrines: federal preemption, federal arbitration policy, and class action. (I can hear the clamor now from all of you who want me to skip right ahead to the juicy arbitration explanations.) Phrases like contracts of adhesionexculpatory provisionsex ante,nonclassable claims, and obstacle preemption fill up the Supreme Court chambers today, like some kind of hideous jargon spill in the Gulf of Mexico. At some point the phrase post ante was uttered, which I don't think even makes sense. Indeed the only moment in the entire hourlong argument that might have happened in Technicolor came with Justice Stephen Breyer's baffling metaphor involving a "9,000-foot cow." And even he seemed to be confused about what that had to do with preemption, arbitration, or cellular telephones.

Everyone is making predictions about the case, but the only one that I endorse is Lithwick's prediction of what the case really means for all of us: "For one thing, it means that if you want to meet someone cute at a bar tonight, you'll do best to avoid discussions of classable claims or obstacle preemption."  I wish someone had told me that 10 years ago.

[Meredith R. Miller]

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