The high court's decision is particularly troubling because it is based on the Federal Arbitration Act, which states that contracts providing for arbitration are to be enforced except where state law deems them to be unenforceable. The California courts consistently have found that the arbitration clauses that preclude class-action remedies are unenforceable. The Supreme Court ignored this and explicitly said that it was important to protect defendants, such as corporations, from the in terrorem (“in fear”) effects of class action that pressure them into settlements. The court's conservative majority could not have been clearer that it was favoring businesses over consumers.Chemerinsky placed the case in the context, calling AT&T Mobility “the third decision in the last three years in which the high court has found that arbitration agreements should be broadly read to prevent injured individuals from going to court.” He noted that all three were 5-4 decisions in which the Court’s conservative majority voted to shut the courtroom doors on everyday Americans.
Chemerinsky concluded by describing the long-term effects of the Court’s decisions.
The notion that an injured person has a right to his or her day in court is deeply ingrained in American culture. But the proliferation of arbitration agreements, and the Supreme Court's aggressive enforcement of them, means that it is increasingly a myth that an injured person can sue.Click here more information on AT&T Mobility v. Concepcion and AFJ’s special report on the case.