Administrative Regulation of Arbitration

Abstract

In Epic Systems v. Lewis, a case on arbitration agreements and class action waivers, the U.S. Supreme Court tangentially addressed the intersection of arbitration and agency deference. The Court’s opinion highlighted a gap in legal scholarship: very little has been written on administrative regulation of arbitration. By cataloging for the first time the instances in which agencies have regulated arbitration over the last four decades, this Note strives to jumpstart the scholarly debate around administrative regulation of arbitration. In the face of decades-old agency rules, this Note shows why Epic Systems should not be interpreted to preempt regulations of arbitration pursuant to general delegations of rulemaking authority. Such an interpretation, which assumes the incompatibility of the agency-deference case law and the arbitration jurisprudence, clashes with longstanding Supreme Court precedent.

Keywords: arbitration; regulation; administrative law; Federal Arbitration Act

JEL Classification: K40, J52