The Continuing Voice of Dissent: Justice Thomas and the Federal Arbitration Act

44 Pages Posted: 24 Jul 2017  

Brian Farkas

Goetz Fitzpatrick LLP; Cardozo School of Law

Date Written: 2016

Abstract

Since 1984, a majority of the Supreme Court has held that the Federal Arbitration Act (“FAA”) preempts conflicting state arbitration laws, and that the FAA must be applied in state courts. Consequently, federal courts have invalidated many states’ attempts to regulate arbitration. This reality has shaped American arbitration law for over three decades. Justice Clarence Thomas has vigorously fought against this approach to arbitration policy since he joined the Supreme Court. Indeed, he has been among the most vocal and consistent opponents of the application of the FAA in state court proceedings. Yet his voice has always been in dissent, most recently in the December 2015 decision in DIRECTV, Inc. v. Imburgia. This Article represents the most comprehensive examination to date of Justice Thomas’ views on both the FAA and arbitration more broadly. Beginning with a background on the FAA’s history and the Supreme Court’s arbitration jurisprudence, it explores his unique judicial philosophy and its intersection with arbitration policy. In an area of procedural law that evades facile labels of ‘liberal’ and ‘conservative,’ Justice Thomas shows the ways in which a conservative preference for states’ rights can actually lead to liberal procedural and substantive outcomes.

Keywords: Arbitration, ADR, Dispute Resolution, Supreme Court, Clarence Thomas, Federal Arbitration Act

Suggested Citation

Farkas, Brian, The Continuing Voice of Dissent: Justice Thomas and the Federal Arbitration Act (2016). Harvard Negotiation Law Review, Vol. 22, No. 1, Fall 2016. Available at SSRN: https://ssrn.com/abstract=3006415 or http://dx.doi.org/10.2139/ssrn.3006415

Brian Farkas (Contact Author)

Goetz Fitzpatrick LLP ( email )

One Penn Plaza
New York, NY 10119
United States

Cardozo School of Law ( email )

55 Fifth Avenue
New York, NY 10003
United States

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