Curbing Concepcion: How States Can Ease the Strain of Predispute Arbitration to Counter Corporate Abusers

Abstract

The ubiquitous use of predispute arbitration clauses in employee and consumer contracts has hidden a generation of wrongdoing behind confidential and unreviewable decision-making. With individuals lacking the bargaining power to refuse these provisions and Congress unable to pass meaningful reform to prevent them, it is time for the states to step in and restore the adjudicatory guarantees that have been eroded by increasingly severe arbitration procedures. This Article begins with a survey of the legal and policy background of mandatory arbitration in the United States and introduces an emerging interpretation of the Federal Arbitration Act that grants states the power to regulate arbitration without fear of federal preemption. The interpretation is then analyzed against nationwide precedent and is scrutinized for its viability outside of its current Ninth Circuit domain. If this understanding of federal law continues to proliferate, states can foster meaningful accountability within arbitration by providing consumers and employees with transparent dispute resolution practices and a revived ability to aggregate small-dollar claims.