Talk:AT&T Mobility LLC v. Concepcion

Harder to file class actions

Mudwater, please identify a reliable source that supports the sentence, "By permitting contracts that exclude class action arbitration, the high court's decision will make it much harder for consumers to file class action lawsuits," without any improper synthesis. --Dr. Fleischman (talk) 07:00, 28 June 2014 (UTC)

@DrFleischman:As I indicated in the edit summary for that version of the article, there are already four reliable sources -- the four footnotes at the end of that sentence, at the end of the lead. If you read through those four articles, that's very much what they say. To make that even more obvious, I added short quotes from each article to the footnotes. You can see them by clicking through to that version of the article, but here they are again. Two are from before the Supreme Court decision and two are from after. "If a majority of the nine justices vote the telecom giant's way, any business that issues a contract to customers — such as for credit cards, cellphones or cable TV — would be able to prevent them from joining class-action lawsuits." (L.A. Times) "If the case is decided the way many observers predict, it could end class-action litigation in America as we know it." (S.F. Chronicle) "Businesses may use standard-form contracts to forbid consumers claiming fraud from banding together in a single arbitration, the Supreme Court ruled on Wednesday in a 5-to-4 decision that split along ideological lines. Though the decision concerned arbitrations, it appeared to provide businesses with a way to avoid class-action lawsuits in court. All they need do, the decision suggested, is use standard-form contracts that require two things: that disputes be raised only through the informal mechanism of arbitration and that claims be brought one by one." (N.Y. Times) "The Supreme Court dealt a blow to class-action lawsuits that involve small claims affecting thousands or even millions of people by ruling that corporations may use arbitration clauses to block dissatisfied consumers or disgruntled employees from joining together.... The ruling was 'the biggest ever' on class actions, said Vanderbilt University law professor Brian Fitzpatrick, an expert on such litigation. 'It gives companies a green light to exempt themselves from all class actions from their customers or from their employees,' Fitzpatrick said. 'Companies can basically escape from the civil justice system. And why wouldn't a company take advantage of that?'" (L.A. Times) Those are just brief summaries, the four articles go into a lot more detail about why "By permitting contracts that exclude class action arbitration, the high court's decision will make it much harder for consumers to file class action lawsuits." — Mudwater ^(Talk) 11:37, 28 June 2014 (UTC)

I've asked other editors to join the discussion, by posting about this on the talk pages for WikiProject Law and WikiProject U.S. Supreme Court cases. — Mudwater ^(Talk) 11:51, 28 June 2014 (UTC)

The sentence may need to be rewritten to account for significant opposing views, such as Rutledge and Drahozal's "Sticky arbitration clauses" (questioning hypothesis of mass adoption of consumer arbitration clauses with class action waivers after Concepcion, based on evidence collected showing no significant increase in usage of franchise arbitration clauses with class action waivers after Concepcion or AmEx; noting though some high-profile examples of adoption of consumer arbitration clauses with class-action waivers after Concepcion). RJaguar3 | u | t 14:58, 28 June 2014 (UTC)

Mudwater, we'll have to break this down source-by-source. The first two sources (by Lazarus and Fitspatrick) are opinion pieces. These are neither news reporting nor peer-reviewed scholarly articles and therefore not reliable sources. From a verifiability standpoint they could be cited with attribution, but not without. (As RJaguar3 points out, they would also need to be balanced against opposing viewpoints.) Your use of the New York Times source is classic WP:SYNTH; you have reached a different conclusion than what the source says. Finally, the last source (by Savage) attributes the conclusion to Fitzpatrick; so we must attribute it to Fitzpatrick ourselves. On a broad level you're engaging in classic synth, by basically saying "those sources all more-or-less said X, so we can say X." That is a WP no-no. Each source must be independently reliable and we are not allowed to stray substantively beyond what the reliable sources say. Otherwise we open our article into all sorts of editorializing. Everything in our articles must be directly verifiable by reliable sources. --Dr. Fleischman (talk) 15:48, 28 June 2014 (UTC)

I replaced the citations to editorials in the lede with a citation to Sherry's article in The Supreme Court Review (published by University of Chicago Press). The relevant text supporting the claim is "I begin with a discussion of AT&T Mobility LLC v Concepcion, in which the Court reversed the Ninth Circuit and upheld the enforceability of a contract in which consumers simultaneously agreed to arbitration and waived classwide arbitration. It seems likely that most consumer contracts will now contain such a clause, and classwide consumer actions—whether litigation or arbitration—will all but disappear." (citations omitted). RJaguar3 | u | t 16:43, 6 July 2014 (UTC)

That isn't a proper citation. You're using a source that includes one conclusion to draw a different conclusion. That's classic WP:SYNTH. As things currently stand we still have no reliable sourcing for the current sentence. Please find something in the next few days or I will delete the sentence. Don't worry, it can always be restored if we find something. --Dr. Fleischman (talk) 21:29, 6 July 2014 (UTC)

@DrFleischman: I hope the reworded sentence in this edit, cited to Sternlight, addresses your concerns. RJaguar3 | u | t 21:52, 6 July 2014 (UTC)

That's a long article by Sternlight. What portion of it is our sentence referring to? --Dr. Fleischman (talk) 03:09, 7 July 2014 (UTC)

On a more general note, I have an issue with your overall approach here. You seems to have a preconceived notion of what the article should say (at least about the impact of the decision) and you're trying to find sources that fit your notion. That's highly likely to lead to an unbalanced article that doesn't reflect the wealth of relevant opinions and analyses on the subject. Why not create a new section (perhaps called "Impact"), include all of the relevant, notable opinions, and then include a very short summary of them in the lead section? That would solve a bunch of different problems that you're creating with this hunt-and-peck approach. --Dr. Fleischman (talk) 03:08, 7 July 2014 (UTC)

@DrFleischman: Thank you for your feedback. First, as indicated in the citation, the specific text supporting the claim is found on pages 708 and 709. Specifically, it is the last paragraph on page 708 (continuing onto page 709). Other sources can readily be found (I will make a new subsection). Second, having read most of the consumer arbitration literature after Concepcion, I have a good idea of how the article should be written to best satisfy WP:NPOV. The only viewpoint I have found in the reliable sources is that Concepcion allows businesses to avoid class actions through arbitration clauses in their consumer contracts. (This is a distinct statement from a declaration that businesses actually responded to Concepcion by massive adoption of arbitration, which has reliable sources both supporting and opposing it.) If you have your own reliable source stating that, even after Concepcion, businesses still cannot avoid class actions by including arbitration clauses, please share it with us. I do agree that the impact should also be summarized in the body of the article, not just the lede; I will add it as one of my projects. RJaguar3 | u | t 03:38, 7 July 2014 (UTC)

I think we're heading in the right direction. I'd like to see most of this material moved out of the lede and into a dedicated section, with only a brief summary included in the lede (per WP:MOSINTRO). If the section is properly cited then the summary in the lead need not be cited at all per WP:LEADCITE (provided it accurately reflects the content in the body). --Dr. Fleischman (talk) 06:59, 7 July 2014 (UTC)

Sources supporting effects of decision

Here is a list of sources that can be used to support the claim that Concepcion allowed businesses to avoid class actions by adopting arbitration.

• Sternlight, Jean (2012). "Tsunami: AT&T Mobility LLC v. Concepcion Impedes Access to Justice" (PDF). Oregon Law Review. 90 (3): 703–727. Retrieved 29 October 2013. Last paragraph on page 708 (continuing to 709).
• Sternlight, Jean R. (2012). "Mandatory Binding Arbitration Clauses Prevent Consumers from Presenting Procedurally Difficult Claims" (PDF). Southwestern Law Review. 42: 87–129. First full paragraph on page 88.
• Gilles, Myriam (2011-09-15). "AT&T Mobility vs. Concepcion: From unconscionability to vindication of rights". SCOTUSblog. Retrieved 29 October 2013. Last sentence of paragraph 1.
• Welsh, Nancy A. (2012). "Mandatory Predispute Consumer Arbitration, Structural Bias, and Incentivizing Procedural Safeguards" (PDF). Southwestern Law Review. 42 (1): 187–228. Retrieved 21 September 2013. First full paragraph on page 188 (the second paragraph on the same page is useful as well).

RJaguar3 | u | t 03:51, 7 July 2014 (UTC)

Let's gather all of the notable sources, not just the ones that support the article as written. I'm not 100% that all of the sources are so one-sided. Check out the Forbes article below, for instance.

• Segal, David (May 5, 2012). "A Rising Tide Against Class-Action Suits". The New York Times.
• Fisher, Daniel (May 20, 2011). "Has Scalia Killed The Class Action?". Forbes.

--Dr. Fleischman (talk) 07:12, 7 July 2014 (UTC)

Paragraph 4 of Segal does directly support the claim ("In April 2011, the Supreme Court ruled in AT&T Mobility v. Concepcion that corporations could write consumer contracts that blocked class-action lawsuits. To do so, the corporations need only draft a contract that a.) requires unhappy customers to settle disputes through arbitration, and b.) prohibits unhappy customers from arbitrating as a collective." (hyperlink omitted)). Segal primarily debates what the impact of this is on consumer claims, which should be discussed on Wikipedia (not sure if consumer arbitration would be a better place to discuss it). Fisher is good; although he primarily questions whether businesses are actually adopting arbitration to avoid class actions, which is different from the Supreme Court saying that they could, his commentary on exceptions to arbitration with class action waivers should also be included (not necessarily in the lede). RJaguar3 | u | t 14:11, 7 July 2014 (UTC)

You're looking at the issue too narrowly. You have a thesis ("Concepcion allowed businesses to avoid class actions by adopting arbitration") and you're looking for ways to support that thesis. That's not how to write balanced WP articles. Find the notable sources and then try to fit their main points into the article. If this leads you somewhere you didn't expect, sobeit. --Dr. Fleischman (talk) 05:48, 8 July 2014 (UTC)

Removal of "Subsequent developments" section

I noticed that DrFleischman removed the three paragraphs of text I moved from Consumer arbitration into a new "Subsequent developments" section. The edit had the edit summary "rm unhelpful, unencyclopedic sentence". Thus, it is unclear whether DrFleischman intended to remove three paragraphs of text. Moreover, the text covers an important aspect of the decision: exactly how are businesses responding to Concepcion in adding or changing arbitration terms? It may also help provide support for the text discussed at #Harder to file class actions. I am readding the text pending further discussion. RJaguar3 | u | t 14:40, 28 June 2014 (UTC)

Sorry, that was a mistake on my part. I only meant to remove the last sentence in the lead. ("The effects of the Concepcion decision on the usage of consumer arbitration clauses have also been discussed.") I have never seen a sentence like this in Wikipedia or any other encyclopedia. The purpose of the lead is to summarize the article, not to describe its contents. That's what the table of contents is for. --Dr. Fleischman (talk) 15:52, 28 June 2014 (UTC)

New York Times source

"Arbitration Everywhere, Stacking the Deck of Justice" RJaguar3 | u | t 18:07, 31 October 2015 (UTC)

Reassess

This article hasn't been assessed for a few years, and it appears as though it has been greatly improved since its last assessment. I'm reassessing to a "B" class, and I don't think it would take too much to get to GA status. agtx 19:56, 26 September 2016 (UTC)