Follow POL on Twitter I've long taken the position that AT&T Mobility v. Concepcion was pro-consumer because it expanded the range of choices available to consumers in the marketplace: a consumer could pre-commit not to bring a class action, the vendor could pre-commit to providing a cheaper and quicker legal procedure that permitted the vindication of the consumer's rights, and the vendor could split the savings of increased legal certainty with the consumer through lower prices. Win-win, except for the trial bar.
A recent study exploring the parameters of post-Concepcion arbitration clauses by Myriam Gilles—no friend of aggressive arbitration clauses—finds that many vendors have responded to Concepcion to make their arbitration clauses more consumer friendly, though that could just as easily be a response to post-Concepcion decisions distinguishing Concepcion because the challenged arbitration clauses failed to provide the same consumer protection as Concepcion did. (As a matter of legal doctrine, I continue to believe it's a mistake to call such contracts "unconscionable," and believe it makes more sense to phrase their rejection as against public policy on grounds that they are exculpatory.)
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