'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

See all articles by Tamar Meshel

Tamar Meshel

University of Alberta - Faculty of Law

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

Meshel, Tamar, 'A Doughnut Hole in the Doughnut’s Hole': The Henry Schein Saga and Who Decides Arbitrability (August 2, 2020). Forthcoming in 73(1) Rutgers University Law Review (2021), Available at SSRN: https://ssrn.com/abstract=3665802

Tamar Meshel (Contact Author)

University of Alberta - Faculty of Law ( email )

Law Centre (111 - 89 Ave)
University of Alberta
Edmonton, Alberta T6G 2H5
Canada

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