The Mandatory Core of Section 4 of the Federal Arbitration Act

Virginia Law Review In Brief, Vol. 96, 2010

8 Pages Posted: 16 Mar 2010 Last revised: 7 Apr 2010

David Horton

University of California, Davis - School of Law

Date Written: March 12, 2010

Abstract

In Rent-a-Center v. Jackson, the U.S. Supreme Court will determine whether businesses can require their employees, consumers, and franchisees to arbitrate the issue of whether the arbitration clause itself is unconscionable. The conventional wisdom, based on dicta in several Supreme Court decisions, is that parties can arbitrate the validity of the arbitration clause as long as there is clear and unmistakable evidence of their intent to do so. Conversely, this short Essay argues that courts, not arbitrators, have the exclusive power to determine whether an arbitration clause is invalid under traditional contract defenses. The source of the judiciary’s monopoly is section 4 of the Federal Arbitration Act, which mandates that any time the “making of the agreement to arbitrate” is “in issue,” a judge must resolve the matter.

Keywords: Rent-a-Center v. Jackson, arbitration, arbitrability, Federal Arbitration Act, section 4

Suggested Citation

Horton, David, The Mandatory Core of Section 4 of the Federal Arbitration Act (March 12, 2010). Virginia Law Review In Brief, Vol. 96, 2010. Available at SSRN: https://ssrn.com/abstract=1569783

David Horton (Contact Author)

University of California, Davis - School of Law ( email )

Martin Luther King, Jr. Hall
Davis, CA CA 95616-5201
United States

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