Supreme Court Decision Cites UC Hastings’ Business Law Journal

Justice Antonin Gregory Scalia’s majority opinion in AT&T Mobility v. Concepcion, argued November 9, 2010—decided April 27, 2011, cites a 2006 article published by the Hastings Business Law Journal.

The article, “An Unconscionable Application of the Unconscionability Doctrine: How the California Courts are Circumventing the Federal Arbitration Act,” by Stephen A. Broome, first appeared in 3 Hastings Bus. L. J. 39, 54, 66 (2006). In it, Broome “examines California unconscionability jurisprudence with an eye to highlighting the disparate application of unconscionability doctrine in cases involving arbitration agreements vis-a-vis cases involving ordinary contracts.”

About AT&T v. Concepcion

“For big-ticket civil litigation, AT&T v. Concepcion is sure to be one of the blockbuster decisions of this Supreme Court Term,” says Professor Richard Marcus, UC Hastings’ Horace O. Coil ('57) Chair in Litigation. “For one thing, it answers the very important question whether states can limit class-action waivers in arbitration agreements. It also raises more general questions about whether or how states can place any limits on enforcement of arbitration provisions in consumer ‘contracts.’ Already the California Legislature has given some thought to what it can do in the way of consumer protection in the wake of the case.”

From the Opinion of the Court (Syllabus):

The cellular telephone contract between respondents (Concepcions) and petitioner (AT&T) provided for arbitration of all disputes, but did not permit classwide arbitration. After the Concepcions were charged sales tax on the retail value of phones provided free under their service contract, they sued AT&T in a California Federal District Court. Their suit was consolidated with a class action alleging, inter alia, that AT&T had engaged in false advertising and fraud by charging sales tax on “free” phones. The District Court denied AT&T’s motion to compel arbitration under the Concepcions’ contract. Relying on the California Supreme Court’s Discover Bank decision, it found the arbitration provision unconscionable because it disallowed classwide proceedings. The Ninth Circuit agreed that the provision was unconscionable under California law and held that the Federal Arbitration Act (FAA), which makes arbitration agreements “valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract,” 9 U. S. C. §2, did not preempt its ruling.”

…SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, THOMAS, and ALITO, JJ., joined. THOMAS, J., filed a concurring opinion. BREYER, J., filed a dissenting opinion, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined.

Impact on the Hastings Business Law Journal

The Hastings Business Law Journal (“HBLJ”) is a scholarly publication written by academics, professionals and law students. 2L Jeffrey Ogorek, incoming editor-in-chief of the journal, actually saw the oral argument of AT&T Mobility v. Concepcion at the Ninth Circuit last year as part of his 1L Civil Procedure class.

“There is a sense of excitement,” says Ogorek. “It’s great exposure, and shows the HBLJ is a desirable journal for authors to publish. This will boost our acceptance rate, and will also help to solicit articles as we seek acquisitions ahead of time. When a Supreme Court Justice cites your work, that will weigh on anyone’s decision pretty highly.”

“The Court's citation to an article from our Business Law Journal is bound to call additional attention to the Journal, as well as getting a lot of attention for that specific article,” agrees Professor Marcus.

In addition to the Supreme Court's citation, Broome's HBLJ article has also been cited in the Fordham Law Review, San Diego Law Review, NYU Law Review, University of Pennsylvania Journal of International Law, Ohio State Journal on Dispute Resolution, University of Nevada Law Journal, Harvard Journal of Law and Public Policy, Harvard Negotiation Law Review, Idaho Law Review and Columbia University Law Review.

The mission of the HBLJ is threefold: (1) to provide a forum for aspiring and current legal scholars to publish their work; (2) to provide the legal community with reliable and thoughtful commentary on new developments and trends in the law; and (3) to provide UC Hastings law students with the opportunity to hone their research, writing, and editing skills.

Ogorek says his goal with the journal going forward is to continue publishing practical articles that “people will use.” The Summer 2011 journal (Vol. 7, No. 2) will be available shortly, including articles on offshore banking; alternative methods to pursue claims for securities related fraud; the contract paradigm used to structure the advancement of legal fees to employees facing criminal investigation; and an argument as to why the empowerment of stakeholder investors presents the only currently viable means for stakeholders to influence the behavior of the American public corporation. 

More

• Read the AT&T Mobility v. Concepcion slip opinion (PDF).
• Read AT&T Mobility v. Concepcion case page on SCOTUS blog.
• Information regarding UC Hastings’ Journals and subscriptions.

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