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The Power of Now
Wednesday, November 10, 2010
Every Supreme Court reporter waits—often in vain and for decades—for a case like AT&T Mobility v. Concepcion. It 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 adhesion, exculpatory provisions, ex 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.
In plain English, the Supreme Court needs to decide whether Corporate America can make ordinary slobs like us, who sign take-it-or-leave-it contracts, give up our right to file class-action suits. And in case you're wondering why class-action suits matter to us ordinary slobs, consider this: Not a lot of lawyers are willing to take on AT&T for $30.32. Sometimes the only way to police misconduct—particularly small differentials in pay (based on, say, race or gender) or itsy bitsy fraudulent representations—is by pooling litigants together and suing together as a class.
Now you might think this issue sorts itself out on straight liberal/conservative lines, and the amicus briefs filed in the case do not dispel that impression. (The NAACP Legal Defense Fund files a brief on the Concepcions' side of the case; DIRECTV, the Pacific Legal Foundation, and the U.S. Chamber of Commerce weigh in on AT&T's side.)* But as oral argument proves, this case is more complicated than that.