Judicial Resistance to Mandatory Arbitration as Federal Commandeering

32 Pages Posted: 20 Nov 2017 Last revised: 14 Apr 2020

See all articles by Matthew Stanford

Matthew Stanford

affiliation not provided to SSRN

David Carrillo

affiliation not provided to SSRN

Date Written: November 16, 2017

Abstract

This Article argues that the current doctrine of preempting state substantive law in favor of the Federal Arbitration Act (FAA) violates core federalism principles generally, the Tenth Amendment specifically, and is contrary to well-established anti-commandeering and judicial federalism rules. These authorities are all concerned with a core federalism principle: state sovereignty.

The states retained sovereignty when they joined the Union. The Tenth Amendment expressly enshrines this retention. Modern federal court doctrine, which imposes federal arbitration law on the states, encroaches on retained state sovereignty by preempting state substantive law. This is erroneous regardless of whether the FAA was enacted as a rule of federal judicial procedure or as an exercise of Congress’s substantive Commerce Clause power. Encroaching on the state’s retained sovereignty, as the FAA does, violates the fundamental federalism principle and opens a path toward disrupting the power balance between the state and federal governments that Madison considered crucial to protecting individual liberty.

When one sovereign comes to dominate in a federalist system, that government begins to lose its federalist character. Consequently, conflict about the FAA is no dry procedural dispute — it is a battle over the republic’s core principles. State courts should continue to serve their federalist role and fight in their corners, and the U.S. Supreme Court should revisit its FAA interpretation.

Note: **The views expressed herein are my own and do not represent the views of the United States government.**

Keywords: arbitration, Federal Arbitration Act, anti-commandeering doctrine, judicial federalism, Supreme Court, federalism

Suggested Citation

Stanford, Matthew and Carrillo, David, Judicial Resistance to Mandatory Arbitration as Federal Commandeering (November 16, 2017). Florida Law Review, Vol. 71, No. 6, 2019. Available at SSRN: https://ssrn.com/abstract=3072518 or http://dx.doi.org/10.2139/ssrn.3072518

Matthew Stanford (Contact Author)

affiliation not provided to SSRN

David Carrillo

affiliation not provided to SSRN

Here is the Coronavirus
related research on SSRN

Paper statistics

Downloads
48
Abstract Views
444
PlumX Metrics