What constitutional rights would you be willing to give up for the pleasure of owning an iPhone? You’d better be willing to give up the 7th Amendment.
The Supreme Court of the United States handed down yesterday its opinion in AT&T v. Concepcion. The opinion drastically undercut states’ rights in favor of federal preemption protecting unconscionable terms in contracts of adhesion — contracts in which one side has unequal bargaining power and issues "take-it-or-leave-it" terms to to the other (for example, cell phone, rental car, airline, employment, movie ticket, amusement park, car purchase, cable TV, internet, insurance, computer software, web site, and other consumer contracts).
The AT&T v. Concepcion decision is seen by many as a license to steal for major US corporations. What recourse does one have if a company steals $1.00 from 10 million people? Or $25? Or $50? Or $500? As Justice Breyer wrote in his dissent:
What rational lawyer would have signed on to represent the Concepcions in litigation for the possibility of fees stemming from a $30.22 claim?
The answer, quite plainly, is none. Who then is to uphold justice if corporations can simply contract away accountability and rule of law?
The case raises equally troubling federalism concerns and abandons key protections of states’ rights. Justice Breyer, dissenting (with internal citation omitted):
By using the words "save upon such grounds as exist at law or in equity for the revocation of any contract," Congress retained for the States an important role incident to agreements to arbitrate. Through those words Congress reiterated a basic federal idea that has long formed the nature of this Nation’s laws. We have often expressed this idea in opinions that set forth presumptions. But federalism is as much a question of deeds as words. It often takes the form of a concrete decision by this Court that respects the legitimacy of a State’s action in an individual case. Here, recognition of that federalist ideal, embodied in specific language in this particular statute, should lead us to uphold California’s law, not to strike it down. We do not honor federalist principles in their breach.
In response, Senators and Representatives announced plans to introduce the Arbitration Fairness Act that would restore consumers’ rights to seek justice in the courts. The bill would eliminate forced arbitration clauses in employment, consumer and civil rights cases, but would permit voluntary arbitration of such disputes if all parties agreed it was in their best interests. Said Representative Hank Johnson of Georgia:
Forced arbitration agreements undermine our indelible Constitutional right to trial by jury, benefiting powerful businesses at the expense of American consumers and workers. Americans with few choices in the marketplace may unknowingly cede their rights when they enter contracts to buy a home or cell phone, place a loved one in a nursing home, or start a new job. We must fight to defend our rights and re-empower consumers.
Here’s what others had to say about the decision:
- AT&T Mobility LLC v. Concepcion [US Supreme Court Slip Opinion]
- Only Democrat-Nominated Supreme Court Justices Defended Our Rights In Major Decision [Andrew Cochran via Injury Board]
- After AT&T Ruling, Should We Say Goodbye to Consumer Class Actions? [Ashby Jones at WSJ Law Blog]
- After Arbitration Ruling, Watch Warren’s Consumer Bureau [Daniel Fisher at Forbes]
- Supreme Court Decision Makes It Harder to Form Class Suits [Nancy Gohring at IDG News via PCWorld]
- Supreme Court Arbitration Ruling: Courts for the Wealthy and Wall Street [Consumer Watchdog]
- In AT&T v. Concepcion, U.S. Supreme Court Deals Crushing Blow to Consumers [Deepak Gupta at Public Citizen Consumer Law & Policy Blog]
- Return of the Arbitration Fairness Act [Public Citizen]
- Stuff You Should Know, Volume 29 [Scott Greenfield at Simple Justice]
[More on the importance of the 7th Amendment]
(c) Copyright 2011 Brett A. Emison
Brett Emison is currently a partner at Langdon & Emison, a firm dedicated to helping injured victims across the country from their primary office near Kansas City. Mainly focusing on catastrophic injury and death cases as well as complex mass tort and dangerous drug cases, Mr. Emison often deals with automotive defects, automobile crashes, railroad crossing accidents (train accidents), trucking accidents, dangerous and defective drugs, defective medical devices.