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Horizons: Conversations About Future Directions in Dispute Resolution

Friday, January 30,  2015
8:30 AM – 4:00 PM | TBD

 

79 – Consumer

Megan Barnett, Note & Comment, There Is Still Hope for the Little Guy: Unconscionability Is Still a Defense Against Arbitration Clauses Despite AT&T Mobility v. Concepcion, 33 Whittier L. Rev. 651 (2012).
Because of unconscionability defenses, consumers may still be able to bring class actions. To succeed, plaintiffs should enumerate specific terms within the arbitration clause and argue why the terms are unconscionable.
{45} ARB: MANDATORY, COURT-ANNEXED—GENERAL
{79} SUBJ MATTER: CONSUMER
 
Jeffrey T. Ferriell, Boilerplate Terms in Context, 40 Cap. U. L. Rev. 605 (2012).
This article examines the current understanding of boilerplate clauses in adhesion contracts, for instance, arbitration clauses.
{60} ADR—GENERAL
{79} SUBJ MATTER: CONSUMER
 
Charles Gibbs, Note, Consumer Class Actions After AT&T v. Concepcion: Why the Federal Arbitration Act Should Not Be Used to Deny Effective Relief to Small-Value Claimants, 2012 U. Ill. L. Rev. 1345 (2012).
This note addresses the AT&T v. Concepcion decision and the effect it may have on small value claimants. The author argues that the Supreme Court decision, as well as waivers of class action under the Federal Arbitration Act, is less economically efficient with a lower deterrent value when compared to class action lawsuits.
{44} ARBITRATION—GENERAL
{79} SUBJ MATTER: CONSUMER
{147} POWER IMBALANCE
 
Colin P. Marks, The Irony of AT&T v. Concepcion, 87 Ind. L.J. Supp. 31 (2012)
This article discusses the landmark arbitration case of AT&T v. Concepcion and the underlying Federal Arbitration Act, on which the opinion is based. The decision is apparently ironic because its effect runs counter to the intent of the legislation.
{44} ARBITRATION—GENERAL
{79} SUBJ MATTER: CONSUMER
{126} REQUIREMENTS: CONTRACTUAL CLAUSES
 
Margaret Jane Radin, Reconsidering Boilerplate: Confronting Normative and Democratic Degradation, 40 Cap. U. L. Rev. 617 (2012).
This article criticizes the antidemocratic effect of the court system’s constant enforcement of adhesion contracts and their boilerplate clauses. For instance, people regularly waive their rights to sue via mandatory arbitration clauses.
{60} ADR—GENERAL
{79} SUBJ MATTER: CONSUMER
 
Maria Rendina, Note & Comment, Arbitration Clauses after Rent-A-Center v. Jackson and Granite Rock v. International Brotherhood of Teamsters, 43 U. Tol. L. Rev. 725 (2012).
This article attempts to resolve the tension in the Supreme Court’s precedent regarding arbitrability of arbitration clauses exhibited by these two cases. Starting with an examination of the history of arbitration law and the context of the titular cases, the article goes on to predict that the Supreme Court will continue to give preference to the arbitrability of contracts and their provisions despite the ruling in Granite Rock.
{44}     ARBITRATION—GENERAL
{79}     SUBJ MATTER: CONSUMER
{126}   REQUIREMENTS: CONTRACTUAL CLAUSES
 
Elizabeth Renuart, Toward a More Equitable Balance: Homeowner and Purchaser Tensions in Non-Judicial Foreclosure States, 24 Loy. Consumer L. Rev. 562 (2012).
This article discusses the rights and interests of homeowners and purchasers related to the current foreclosure crisis. The author specifically notes Nevada’s implementation of pre-sale mediation and posits that the program should be made mandatory everywhere in an effort to alleviate some of the burdens on the Court system and increase positive outcomes.
{21} MEDIATION—GENERAL
{79} SUBJ MATTER: CONSUMER
 
Craig Smith & Eric V. Moye, Outsourcing American Civil Justice: Mandatory Arbitration Clauses In Consumer And Employment Contracts, 44 Tex. Tech L. Rev. 281 (2012).
This article focuses on the possible issues with the increase in mandatory arbitration clauses in consumer and employment contracts. These clauses have a deleterious effects on the Seventh Amendment right to a trial by jury.
{44} ARBITRATION—GENERAL
{79} SUBJ MATTER: CONSUMER
{93} SUBJ MATTER: LABOR—GENERAL

Thomas J. Stipanowich, The Arbitration Fairness Index: Using a Public Rating System to Skirt the Legal Logjam and Promote Fairer and More Effective Arbitration of Employment and Consumer Disputes, 60 KAN. L. REV. 985 (2012).
This article proposes the establishment of an “Arbitration Fairness Index,” a public rating system assessing the fairness of arbitration programs associated with contracts for goods, services, or employment, to enhance public awareness and understanding of consumer and employment arbitration programs.   The author explores the benefits and downsides of such an index, while also discussing how to create and implement this novel arbitration rating scheme.
{44} ARBITRATION—GENERAL
{79} SUBJ MATTER: CONSUMER
{96} SUBJ MATTER: EMPLOYMENT (NON-UNION)

Symeon C. Symeonides, Choice of Law in the American Courts in 2011: Twenty-Fifth Annual Survey, 60 Am. J. Comp. L. 291 (2012).
This article is a survey of choice of law decisions. However, it does discuss a few significant decisions relating to the enforceability of arbitration clauses. These cases include one from the Supreme Court (AT&T Mobility LLC v. Concepcion) and two by the West Virginia supreme court.
{44} ARBITRATION—GENERAL
{79} SUBJ MATTER: CONSUMER

Shauhin A. Talesh, How Dispute Resolution System Design Matters: An Organizational Analysis of Dispute Resolution Structures and Consumer Lemon Laws, 46 LAW & SOC’Y REV. 463 (2012).
This article examines how the form of a dispute resolution structure can have critical implications on the effectiveness of consumer protection laws.  After examining how different dispute resolutions structures give different meanings to substantially similar “lemon” laws in California and Vermont, the author concludes that structure can determine effectiveness.
{60} ADR—GENERAL
{79} SUBJ MATTER: CONSUMER
 
Ann Marie Tracey & Shelley McGill, Supreme Court—October Term 2010, Seeking a Rational Lawyer for Consumer Claims After the Supreme Court Disconnects Consumers in AT&T Mobility LLC v. Concepcion, 45 Loy. L.A. L. Rev. 435 (2012)
This article argues that the recent AT&T Mobility LLC v. Concepcion decision cuts off the possibility of class-wide remedy for all consumers in contracts of adhesion.  The authors recommend and discuss possible legislative action to address this issue.
{44} ARBITRATION—GENERAL
{79} SUBJ MATTER: CONSUMER
{103} SUBJ MATTER: PUBLIC UTILITIES

Ginevra Ventre, The Federal Arbitration Act Preempts a State Law that Renders Unconscionable a Class Arbitration Waiver in a Consumer Adhesion Contract Likely to Involve Disputes over Small Sums of Money: AT&T Mobility LLC v. Concepcion, 50 Duq. L. Rev. 919 (2012).
This article primarily focuses AT&T Mobility v. Conception.  The author discusses the decision of the Court to hold that the Federal Arbitration Act preempts California state law when dealing with a specific aspect of contracts of adhesion.
{45} ARB: MANDATORY, COURT- ANNEXED—GENERAL
{79} SUBJ MATTER: CONSUMER
{126} REQUIREMENTS: CONTRACTUAL CLAUSES