Circumventing Concepcion: Conceptualizing Innovative Strategies to Ensure the Enforcement of Consumer Protection Laws in the Age of the Inviolable Class Action Waiver

Circumventing Concepcion: Conceptualizing Innovative Strategies to Ensure the Enforcement of Consumer Protection Laws in the Age of the Inviolable Class Action Waiver


In the wake of the Supreme Court’s decision in AT&T Mobility v. Concepcion, class action waivers have become seemingly invulnerable to attack. Class action attorneys have become dispirited that consumer rights seem impossible to enforce. While the Federal Arbitration Act has been written about at length, this Note adds to that scholarship by proposing several new solutions to the problems posed by class action waivers. In addition, this Note seeks to consolidate other proposals, respond to major objections to these proposals, and in its conclusion, compare the effectiveness of these various proposals to settle on one preferred solution. Ultimately, the solutions to the problem of class action waivers fall into three broad categories: (1) methods that would allow consumers to viably pursue their claims individually in arbitration, (2) methods that would allow consumers to escape from their arbitration agreements and pursue class litigation in court, and (3) methods that bypass the class action device entirely by instead relying on government enforcement of consumer protection laws. After proposing and evaluating several solutions in each category, this Note concludes that the latter category””improved government enforcement of consumer protection laws””is likely to be the most effective.

PDF

More in this Issue

Habeas Corpus and the American Revolution

Modern debates concerning the protections afforded by the Suspension Clause of the U.S. Constitution have taken place within the Supreme Court’s chosen methodological approach in this context, which openly calls for careful attention to the historical backdrop against which the Clause was drafted. This approach is hardly surprising given that long ago Chief Justice John […]

Disciplined Devolution and the New Education Federalism

In the face of congressional gridlock and failed bureaucratic efforts to address evolving challenges, policy makers have increasingly turned to alternative governance frameworks. Three such frameworks are executive waiver of legislative schemes,enlistment of states to make policy under federal programs, and experimentalist collaboration between policy makers and citizens focused on continuous learning. Analysis of each […]

Robotics and the Lessons of Cyberlaw

Ryan Calo Two decades of analysis have produced a rich set of insights as to how the law should apply to the Internet’s peculiar characteristics. But, in the meantime, technology has not stood still. The same public and private institutions that developed the Internet, from the armed forces to search engines, have initiated a significant […]

Inexcusable Wrongs

John C.P. Goldberg Tort law has little patience for excuses. Criminal law is more forgiving. It recognizes complete excuses such as duress and provocation, as well as excuses that temper punishment. Excuses are also commonplace in ordinary morality. Like criminal law and morality, tort law seems concerned with holding persons accountable for their wrongs, and […]