Class Actions Behind Closed Doors? How Consumer Claims Can (and Should) Be Resolved by Class-Action Arbitration

Published in cooperation with the American Bar Association Section of Dispute Resolutio

A Muddy Mess: The Supreme Court’s Jurisprudence on Jurisdiction for Arbitration Matters

The Supreme Court’s 2022 Badgerow v. Waters decision at- tempts to create a bright-line rule regarding access to federal courts to hear arbitration matters. On its face, the Badgerow majority opinion reads like a straightforward exercise in textualism. Badgerow interpreted the judicial test for jurisdiction under the Federal Arbitration Act (“FAA”) provision regarding vacatur differently than it interpreted the jurisdictional test for a motion to compel under a different part of the statute. However, Badgerow leaves courts, which were already struggling to decipher the Supreme Court’s 2009 decision of Vaden v. Discover Bank, with a significant number of outstanding questions. Although these two cases can theoretically be read together, the two holdings leave open a host of practical difficulties that could lead to years of litigation on arbitration matters—matters that should otherwise be resolved simply and efficiently. This Article outlines the two decisions, how they are read together, and how they leave open inconsistencies. This Article then discusses the likely practical fallout from Badgerow, a proverbial “muddy mess.” The “muddy mess” has already be- gun to occur, based on early lower courts working with these two inconsistent precedents. This Article suggests legislative changes to create a consistent and predictable rule for motions dealing with arbitration practice

Impact Preemption: A New Theory of Federal Arbitration Preemption

The United States Supreme Court has expanded its arbitration preemption jurisprudence to unprecedented and unexplained bounds, ultimately creating a new type of preemption, herein coined “impact preemption.” As applied by the Court, the scope of impact preemption is broader than even field preemption. The future policy implications of impact preemption are significant. Impact preemption shifts the balance of regulatory power in the dual federal–state arbitration system toward the federal courts and away from state regulatory authorities, contrary to the language and legislative history of the Federal Arbitration Act (FAA). In addition, impact preemption has the potential to undermine the stability of the national arbitration system for consumers and contracting parties who utilize arbitration agreements in commerce. This Article traces the history of three fundamental flaws in prior Supreme Court rulings that ultimately resulted in the creation of impact preemption. First, the Court failed to define arbitration for approximately ninety years, and when it finally did so, the Court defined arbitration with a pro-business bias. Second, the Court failed to conduct a preemption analysis or to specify the type and scope of preemption it applied to arbitration. Third, as a result of the first two failures, the Court allowed the preemptive effect of the FAA to expand dramatically over time, notwithstanding its statutory language and legislative history, a failure that culminated in the creation of impact preemption. Impact preemption raises serious federalism issues because it does not require a conflict between federal and state law. Taken to its logical conclusion, the Court’s impact preemption analysis may prohibit states from regulating any aspect of arbitration that potentially “impacts” the arbitration process. This Article urges the Supreme Court to return to the classic roots of conflict preemption analysis under the FAA. A return to these conflict preemption principles would restore the balance of regulatory power between the states and the federal government, and would restore a measure of predictability for consumers and contracting parties who use the national arbitration system to conduct commerce

Online Resources and Family Cases: Access to Justice in Implementation of a Plan

This Article discusses access to justice in the implementation of orders in family cases. Parenting, financial, and other types of family court orders may last up to eighteen or twenty-one years in the case of minor children or longer in the case of protected adults. In the case of financial obligations, these orders set forth ongoing requirements to make monthly payments (such as child support, alimony, and medical expense reimbursements) and to maintain other financial obligations (such as maintaining health insurance, daycare expenses, and payment of costs for extracurricular activities). Most importantly, these court orders allocate parenting time, which may also be called child access or visitation, depending on the jurisdiction

Creating a Framework for Examining Federal Agency Rules Impacting Arbitration

Since 1985, the analysis for determining how to resolve a conflict between the Federal Arbitration Act (“FAA”) and another federal statute has been clear – courts should consider whether Congress evidenced a “contrary congressional command” stating that arbitration agreements may not be enforced under the statute. In contrast, no court has created an analytical framework to consider how to compare federal regulatory actions (by rule or adjudication) prohibiting enforcement of pre-dispute arbitration agreements. This Article fills the gap and suggests two frameworks under which agency actions prohibiting enforcement of arbitration agreements could be considered a “contrary congressional command” rule focused on the enabling legislation or a “contrary regulatory command” rule focused on the regulation itself. Although both rules can be supported by public policy, the “contrary congressional command” rule more closely applies current arbitration law to this new context of regulatory actions. This Article traces the origins of the “contrary congressional command” rule and demonstrates how that rule can be used in cases involving agency action. This Article also gives concrete examples of how the different frameworks would lead to different results depending on the statutory language at issue, the agency action, and the conceptual framework chosen to analyze the case

The Future of Arbitration Law?

This Article provides an in-depth statistical analysis of statutory interpretation of the Supreme Court’s arbitration docket. This paper follows my work in Standing on Its Own Shoulders: The Supreme Court’s Statutory Interpretation of the Federal Arbitration Act. By looking at how the Court interprets the Federal Arbitration Act (FAA), this paper makes predictions about how arbitration cases might be resolved in the future. This paper considers the reliance on and use of fourteen tools of statutory interpretation over the Court’s 52 cases and 114 separate opinions interpreting the FAA through the end of 2021. By considering four crucial sub-categories of cases, this paper draws trends and comparisons across different arbitration legal theories. Specifically, this paper analyzes class arbitration cases, preemption cases, arbitrability cases, and cases involving a potential conflict between the FAA and other federal law. This paper draws four primary conclusions. First, the class action cases will likely continue to build off of themselves, by relying on past precedent and the arbitration canon. Second, the Court will likely continue to give the FAA broad preemptive power given not only its broad support across the Court but also because of an interesting “Thomas Effect” in which Justice Thomas votes against his own prior opinions to maintain a conservative majority. Third, the arbitrability cases stand as a microcosm of the entire arbitration docket, even though they do not contain any strong trends unique to such cases. Finally, this paper draws the conclusion that the Court treats the FAA as a super-statute, giving it gravitational pull over othe

Impact Preemption: A New Theory of Federal Arbitration Preemption

The United States Supreme Court has expanded its arbitration preemption jurisprudence to unprecedented and unexplained bounds, ultimately creating a new type of preemption, herein coined “impact preemption.” As applied by the Court, the scope of impact preemption is broader than even field preemption. The future policy implications of impact preemption are significant. Impact preemption shifts the balance of regulatory power in the dual federal–state arbitration system toward the federal courts and away from state regulatory authorities, contrary to the language and legislative history of the Federal Arbitration Act (FAA). In addition, impact preemption has the potential to undermine the stability of the national arbitration system for consumers and contracting parties who utilize arbitration agreements in commerce. This Article traces the history of three fundamental flaws in prior Supreme Court rulings that ultimately resulted in the creation of impact preemption. First, the Court failed to define arbitration for approximately ninety years, and when it finally did so, the Court defined arbitration with a pro-business bias. Second, the Court failed to conduct a preemption analysis or to specify the type and scope of preemption it applied to arbitration. Third, as a result of the first two failures, the Court allowed the preemptive effect of the FAA to expand dramatically over time, notwithstanding its statutory language and legislative history, a failure that culminated in the creation of impact preemption. Impact preemption raises serious federalism issues because it does not require a conflict between federal and state law. Taken to its logical conclusion, the Court’s impact preemption analysis may prohibit states from regulating any aspect of arbitration that potentially “impacts” the arbitration process. This Article urges the Supreme Court to return to the classic roots of conflict preemption analysis under the FAA. A return to these conflict preemption principles would restore the balance of regulatory power between the states and the federal government, and would restore a measure of predictability for consumers and contracting parties who use the national arbitration system to conduct commerce

Impact Preemption: A New Theory of Federal Arbitration Preemption

The United States Supreme Court has expanded its arbitration preemption jurisprudence to unprecedented and unexplained bounds, ultimately creating a new type of preemption, herein coined “impact preemption.” As applied by the Court, the scope of impact preemption is broader than even field preemption. The future policy implications of impact preemption are significant. Impact preemption shifts the balance of regulatory power in the dual federal–state arbitration system toward the federal courts and away from state regulatory authorities, contrary to the language and legislative history of the Federal Arbitration Act (FAA). In addition, impact preemption has the potential to undermine the stability of the national arbitration system for consumers and contracting parties who utilize arbitration agreements in commerce. This Article traces the history of three fundamental flaws in prior Supreme Court rulings that ultimately resulted in the creation of impact preemption. First, the Court failed to define arbitration for approximately ninety years, and when it finally did so, the Court defined arbitration with a pro-business bias. Second, the Court failed to conduct a preemption analysis or to specify the type and scope of preemption it applied to arbitration. Third, as a result of the first two failures, the Court allowed the preemptive effect of the FAA to expand dramatically over time, notwithstanding its statutory language and legislative history, a failure that culminated in the creation of impact preemption. Impact preemption raises serious federalism issues because it does not require a conflict between federal and state law. Taken to its logical conclusion, the Court’s impact preemption analysis may prohibit states from regulating any aspect of arbitration that potentially “impacts” the arbitration process. This Article urges the Supreme Court to return to the classic roots of conflict preemption analysis under the FAA. A return to these conflict preemption principles would restore the balance of regulatory power between the states and the federal government, and would restore a measure of predictability for consumers and contracting parties who use the national arbitration system to conduct commerce

Taming the Wild West of Arbitration Ethics

This is the published version

Standing on Its Own Shoulders: The Supreme Court\u27s Statutory Interpretation of the Federal Arbitration Act

Empirical evidence on the Supreme Court’s use of tools of statutory interpretation is an emerging field of legal study. This Article is the first to use these methodologies to analyze the Federal Arbitration Act (FAA), enacted in 1925. I analyzed 114 separate Supreme Court arbitration opinions, coding for fourteen different tools of statutory interpretation. This article presents the results of that analysis. The most striking finding from this study is the extraordinarily insular nature of the FAA jurisprudence compared to other scholars’ studies in their respective areas of the law. This nature can be determined statistically from the Supreme Court’s reliance on three key tools of interpretation: (1) prior FAA precedent; (2) the text; and (3) the Supreme Court-created arbitration canon. Relying on these specific tools, the Supreme Court expanded the FAA’s reach, required increasingly more disputes to be arbitrated, and limited the availability of classwide procedures. Since the 1980s, the FAA decisions increasingly favor business interests at the expense of individual consumers, employees, and franchisees. Given the FAA’s age and limited legislative history, the Court relies on itself to divine the Act’s intent as it applies to areas not likely in the contemplation of Congress in the 1920s. This research demonstrates empirically what various justices noted anecdotally—the Court stands on “its own shoulders” to create and enlarge the FAA’s reach