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View Diary: Supreme Court rules against consumers. Again. (130 comments)

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  •  Normally (1+ / 0-)
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    Adam B

    I end up having to seethe reading a Scalia-authored decision because I truly despise his politics and how he infuses his decisions, most of which I don't like, with them -- because they are usually brilliantly written and with rock-solid legal reasoning with which I might disagree, but I can't say it's a complete overreach.

    This decision is very different in character.

    Today's decision is IMO extraordinarily weak in its legal analysis, as I believe Breyer's dissent highlights repeatedly when it points out the lack of precedent for trumping a state's substantive law (CA's unconscionability doctrine as it relates to consumer contracts of adhesion which prohibit class relief) through a holding that a federal procedural mechanism (the FAA) is entitled to greater protection where the two conflict, thus pre-empting the substantive law.  I've read the decision twice now and for the first time ever I truly seen Scalia just out on a limb when it comes to analysis.

    The practical outcome, of course, is that I believe this is the death knell for meaningful consumer redress as it relates to most small consumer contracts.  (Which is, of course, most of them.) Individual arbitrations simply don't work for the consumer despite what ATT claimed and despite the language of its adhesion contract upon which Scalia relied, because for small-scale consumer contract grievances lawyers aren't going to take the financial risk (as if somehow, a promise of attorney's fees is still going to be enough for an attorney to accept a consumer case when the promise exists only if you win at least double what ATT's last offer before arbitration is -- an offer that can of course come only after you've spent far more than the maximum $7500 a consumer receives on pre-arbitration discovery the like.)  So pretty much it will be open season on "tiny violations".  Indeed, already ATT has amended its arbitration agreement following yesterdays' decision.  I would be upset about the practical outcome anyway, but to see it imposed 5-4 through a decision as weak analytically as the one Scalia penned in this case is really depressing.

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    by shanikka on Thu Apr 28, 2011 at 05:35:55 AM PDT

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