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Arbitration's Suspect Status

Hiro N. Aragaki

Loyola Law School (Los Angeles)

January 20, 2010

University of Pennsylvania Law Review, Vol. 159, No. 5, April 2011

Concerned about abuses of power in the arbitration area, state legislatures have stepped up efforts to regulate arbitration agreements. But under the U.S. Supreme Court’s Federal Arbitration Act ("FAA") jurisprudence, such measures are uniformly preempted, resulting in what one scholar has described as "federal imperialism" in an area of law traditionally reserved for the states. This has led to numerous calls for reform, including the controversial "Arbitration Fairness Act" currently pending in Congress.

Under the Constitution’s Supremacy Clause, the FAA should preempt only state laws that stand as an "obstacle" to its purpose. The traditional understanding of that purpose is to enforce arbitration agreements as written. In this Article, I offer a different interpretation of that purpose as one of anti-discrimination: of reversing centuries of "judicial hostility," pursuant to which courts refused to honor pre-dispute arbitration agreements in quite the same way they did other contracts. If I am correct, the FAA should preempt only those state laws that can be said to discriminate improperly against arbitration. Many courts, scholars, and practitioners have lent credence to this theory, but this is the first article systematically to develop it.

This is the first of two works in which I use anti-discrimination law and theory as a lens to critique the Court’s FAA preemption jurisprudence and to develop a more sophisticated approach - one that is better at reconciling the states’ regulatory interests with the "national policy favoring arbitration."

Number of Pages in PDF File: 72

Keywords: AT&T Mobility, Concepcion, Arbitration, Federal Arbitration Act, Federal Preemption, Supreme Court, Antidiscrimination

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Date posted: November 29, 2010 ; Last revised: June 2, 2011

Suggested Citation

Aragaki, Hiro N., Arbitration's Suspect Status (January 20, 2010). University of Pennsylvania Law Review, Vol. 159, No. 5, April 2011. Available at SSRN: https://ssrn.com/abstract=1716439

Contact Information

Hiro N. Aragaki (Contact Author)
Loyola Law School (Los Angeles) ( email )
919 Albany Street
Los Angeles, CA 90015-1211
United States
(213) 736-1406 (Phone)
(213) 380-3769 (Fax)
HOME PAGE: http://www.lls.edu/academics/faculty/aragaki.html

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