Andrew Pincus and Arthur Miller on the Concepcion Decision

A couple days ago, the New York Times published competing letters to the editor from Andrew Pincus and Arthur Miller on the Supreme Court's recent decision in AT&T v. Concepcion. Pincus was AT&T's principal lawyer before the Supreme Court. His letter defends the decision largely on the basis of the particular design of AT&T's arbitration program, which Pincus claims is favorable to consumers even though it bans class actions through a contract of adhesion. Pincus does not address the Supreme Court's reasoning, which may render the states powerless to defeat contractual class action bans regardless of their specific terms, so long as the bans are laundered through mandatory arbitration clauses. Miller, an NYU law professor and class action expert, puts it this way:

This Supreme Court no longer even tries to hide its pro-business orientation. Justice Antonin Scalia’s hostility to class-action lawsuits was betrayed with a lengthy analysis purporting to show that they take longer than cases that are arbitrated individually. He ignored the plain fact that a class action can resolve many hundreds of individual cases all at once and is often an efficient tool for administering justice.