U.S. Arbitration Law in the Wake of AT&T v. Concepcion
The Supreme Court's landmark decision in AT&T Mobility v. Concepcion has undeniably changed the rules of the arbitration game. To supporters of the decision, Concepcion finally put an end to judicial use of common law principles to undermine the enforceability of many arbitration agreements. Such judicial incursions into the realm of arbitration had increasingly left arbitration on unequal footing with all other contracts. To critics of the decision, Concepcion served as a crusing blow to consumer protection on the one hand and principles of federalism on the other. By restricting the use of common law principles to invalidate arbitration agreements, the Supreme Court stripped lower courts of the meager judicial tools in their arsenal that could prevent arbitration from engulfing the entirety of employee and consumer claims.
Michael A. Helfand, Purpose, Precedent, and Politics: Why Concepcion Covers Less than You Think, 4 Arb. L. Rev. 126 (2012).