'A Doughnut Hole in the Doughnut’s Hole': The Henry Schein Saga and Who Decides Arbitrability
Forthcoming in 73(1) Rutgers University Law Review (2021)
71 Pages Posted: 5 Aug 2020 Last revised: 12 Dec 2020
Date Written: August 2, 2020
Abstract
Parties to arbitration agreements in the United States have increasingly found themselves litigating various complex aspects of the arbitral process before the arbitration has even begun. In this article, I examine one such aspect, namely who––the court or the arbitrator––is empowered to decide whether a particular dispute should be referred to arbitration at all. Answering this preliminary question impacts both parties’ contractual obligation to arbitrate disputes and their right of access to the courts. Indeed, this question is currently pending before the Supreme Court in a second appeal from the Court of Appeals for the Fifth Circuit’s judgment in Henry Schein, Inc. v. Archer and White Sales, Inc.
In the article, I examine this intricate question in detail, using both simplifying metaphors and diagrams to lead readers through the complex world of arbitrability and who should decide it. I explore the basic principles established by the Supreme Court in previous cases, as well as Circuit Courts’ decisions implementing these principles. I argue that the Supreme Court has created relatively clear and complementary jurisdictional spheres for courts and arbitrators, which have largely been followed by lower courts. The Fifth Circuit’s decision in Henry Schein, however, deviates from the path forged by the Supreme Court and blurs the line that the Court has drawn between where courts’ jurisdiction ends and that of arbitrators begins. Therefore, I conclude in the article that the Supreme Court should overturn the Fifth Circuit’s decision and reaffirm the principles and jurisdictional framework that its long-standing jurisprudence has established.
Keywords: Arbitration Agreement, United States Supreme Court, Henry Schein, Fifth Circuit, Arbitrability
JEL Classification: K12, K39, K49
Suggested Citation: Suggested Citation