A recent series of Supreme Court opinions, climaxing in the landmark case AT&T Mobility LLC v. Concepcion, has undermined the validity of applying unconscionability to arbitration agreements and generated divergent opinions in lower courts. The saving clause of the Federal Arbitration Act of 1927, 9 U.S.C. § 2 (FAA saving clause), states that "an agreement in writing to submit to arbitration ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist ... for the revocation of any contract." Until Concepcion, unconscionability was an established ground for revoking arbitration agreements under the FAA saving clause. In Barras v. BB&T, the United States Court of Appeals for the Eleventh Circuit limited Concepcion for the first time in the Eleventh Circuit. This Note will explain the facts of Barras, Supreme Court precedent, the approach other circuits have taken in dealing with cases like Barras, and the important differences between these approaches and the Eleventh Circuit's approach. Because Barras's implications appear when its reasoning is contrasted with other circuits, this Note will conclude by using the differences and similarities in the courts' reasoning to build a framework to interpret Concepcion more consistently.
"Barras v. BB&T: Charting a Clear Path to Apply Concepcion Through a Quagmire of Divergent Approaches,"
Mercer Law Review: Vol. 64:
2, Article 8.
Available at: https://digitalcommons.law.mercer.edu/jour_mlr/vol64/iss2/8