Arbitration Conflicts

83 Pages Posted: 21 Jun 2018 Last revised: 13 Nov 2019

Date Written: May 29, 2018


Among the most important recent developments in U.S. civil procedure is the rise of arbitration as a substitute for litigation in public courts. Seeking to lower legal costs and protect themselves from entrepreneurial litigation, firms from Amazon to Wells Fargo have added arbitration clauses to their standard form contracts and invoked them to defend against all manner of litigation. Increased use of arbitration--underpinned by the Supreme Court's view that the Federal Arbitration Act (FAA) requires arbitration agreements to be enforced according to their terms--has transformed arbitration from a method for resolving contractual differences into an all-purpose private justice system.

In this new environment, regulation by federal administrative agencies has emerged as a crucial check against the most problematic uses of arbitration. But agencies' efforts to regulate arbitration have been plagued by persistent questions about the extent of their statutory authority to do so. Those questions have played a central role in the Trump administration’s efforts to roll back Obama-era arbitration regulations, as agencies cited doubts about their statutory authority to justify reversing Obama-era rules. And the issue has divided courts. In its first encounter with an agency arbitration regulation, the Supreme Court in Epic Systems v. Lewis divided sharply over the lawfulness of a National Labor Relations Board ruling that regulated arbitral class action waivers under the National Labor Relations Act.

This Article offers a theory of how the FAA relates to other federal laws, the legal issue at the heart of conflicts over agency arbitration revolution. That theory of the FAA proceeds from two basic propositions: (1) the FAA establishes default rules governing the status and enforceability of arbitration agreements; and (2) whether another law modifies the FAA’s background commands presents an ordinary question of statutory interpretation. The FAA is not, on any accepted theory of statutory interpretation, a "super-statute" that occupies a special position in federal law.

This theory challenges several common assumptions about the law governing arbitration. Under ordinary interpretive principles, the FAA's default rules of dispute resolution procedure are not only modified by statutes that expressly address the validity, enforceability, or revocability of arbitration agreements--a point that is generally accepted in doctrine and scholarship--but also by a range of statutes that modify the FAA impliedly. Among those statutes are laws governing primary conduct, laws that define procedures and remedies for statutory claims, laws that subject regulated parties' contracting to administrative oversight, and laws that direct an agency to implement subsidiary statutory policies that are negatively affected by arbitration. Between them, these statutes supply authority for many contested agency arbitration regulations. But in contrast to much of the scholarly literature, this Article demonstrates that the issue is not governed by Chevron USA Inc. v. Natural Resources Defense Council, Inc.

Keywords: arbitration, regulation, dispute resolution, statutory interpretation, Federal Arbitration Act, FAA, Epic Systems v. Lewis, Borrower Defense Rule, National Labor Relations Act, Chevron

JEL Classification: K40, K41, K42, J52

Suggested Citation

Noll, David, Arbitration Conflicts (May 29, 2018). 103 Minn. L. Rev. 665 (2018), Available at SSRN:

David Noll (Contact Author)

Rutgers Law School ( email )

123 Washington Street
Newark, NJ 07102
United States
9733532584 (Phone)


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