The Supreme Court’s Arbitration Docket

Imre S. Szalai Judge John D. Wessel Distinguished Professor of Social Justice, Loyola University New Orleans College of Law

During the October 2018 Term, the Supreme Court issued opinions in three cases interpreting the Federal Arbitration Act (FAA),[1] the main federal statute governing arbitration: Henry Schein, Inc. v. Archer & White Sales, Inc.,[2] a unanimous decision and Justice Brett Kavanaugh’s first opinion on the Court; New Prime Inc. v. Oliveira,[3] a landmark, unanimous decision representing the first time in decades the Court has rejected an expansive view of arbitration law and ruled in favor of workers; and Lamps Plus, Inc. v. Varela,[4] a splintered five-to-four decision involving class procedures and another nail in the coffin of class actions.

The Court’s decisions regarding the FAA warrant careful study because the Court’s development and interpretation of arbitration law can limit access to the civil justice system, which in turn can impact the enforcement of virtually every area of law in America. America’s system of private arbitration now involves more than sixty million American workers and more than 826 million consumer arbitration agreements (more than every man, woman, and child in America), and more than eighty percent of America’s largest companies have used arbitration for consumer and employment disputes in recent years.[5] With this expansive system of arbitration currently in place and the willingness of courts to compel arbitration where meaningful consent is lacking, corporate America and parties with disproportionate bargaining power can unilaterally and easily remove themselves from the traditional justice system through the use of arbitration clauses. The average person in America has lost access to the courthouse, and in its place, a virtually unregulated, unreviewable, expansive system of privatized justice now exists.

This article has three main goals. First, examining these cases on a narrow plane, I summarize the holdings and legal doctrines arising from these three new arbitration cases, which I collectively refer to as the Court’s 2018 Arbitration Docket. Second, taking a broader view, I situate these cases within the larger arc of the prior development of arbitration law in America. Finally, I explore the potential impact of these three cases going forward, and how each case leaves undecided other important issues involving arbitration law.

As explained in more detail below, these three cases leave in place a vast legal framework, developed by the Court over the years, strongly supportive of arbitration. Continuing a broader trend of pro-business, pro-arbitration decisions, Henry Schein strengthens the power of arbitrators while leaving courts with the ministerial task of rubber-stamping orders compelling arbitration. This rubber-stamping role by the judiciary is leading to the disappearance of meaningful supervision of the expansive system of arbitration. Also, continuing the Court’s prior trend of hostility to class procedures, Lamps Plus, in a nutshell, is a class action killer. The most unusual case from the Supreme Court’s 2018 Arbitration Docket is New Prime. Compared to prior decisions of the Court from the last several decades, New Prime arguably represents a shift in how the Court interprets the FAA. With New Prime, the Court has adopted a more textualist and originalist approach when interpreting the FAA, and there is a potential that future courts may rely on this new approach in FAA cases to reshape the development of arbitration law going forward.

I. Legal Doctrines Arising from the Arbitration Docket

A. Henry Schein Strengthens the Power of Arbitrators

The FAA, as a statute designed to facilitate arbitration, helps allocate decision-making authority between the courts and arbitration tribunals in connection with disputes. The Supreme Court’s decision in Henry Schein, Inc. v. Archer & White Sales, Inc., the first decision written by Justice Kavanaugh, addresses a technical aspect of this relationship or allocation of decision-making authority and ultimately strengthens the power of an arbitrator. In short, the Court in Henry Schein held that arbitrators, not courts, must resolve “wholly groundless” arbitrability arguments if the parties’ agreement delegates arbitrability questions to the arbitrator.[6]

Henry Schein involved a distribution contract for dental equipment. After the relationship between the distributor and manufacturer deteriorated, the distributor filed an antitrust lawsuit against the manufacturer. The manufacturer asked the court to enforce an arbitration clause, which contained an exemption regarding injunctive relief: “Any dispute arising under or related to this Agreement (except for actions seeking injunctive relief . . . ), shall be resolved by binding arbitration in accordance with the arbitration rules of the American Arbitration Association.”[7] The scope of this arbitration clause, with its exemption for injunctive relief, raised several problems in the Henry Schein case.

One can identify at least three different levels of dispute in Henry Schein. First, there is the underlying merits fight between the distributor and manufacturer involving antitrust laws, and the parties’ dispute whether the manufacturer violated antitrust laws.[8]

Second, the parties disagreed about whether the scope of the arbitration clause, with its exemption regarding injunctive relief, covered the distributor’s antitrust lawsuit, which included a request for injunctive relief, among other things.[9] This second-level of disagreement involving the scope of the arbitration clause raised a host of sub-issues. For example, does the exemption for injunctive relief apply if a party asserts a claim for injunctive relief, mixed together with requests for other forms of relief, such as monetary relief? Or should the exemption be construed more narrowly, as applicable when a party is seeking only injunctive relief and no other form of relief? Furthermore, if the exemption covers a situation where a party is seeking mixed injunctive and monetary relief, would the request for injunctive relief proceed in court, while the requests for other relief would be subject to arbitration? Or would the entire action (seeking both injunctive relief and other relief) proceed in court? There were multiple sub-issues regarding the interpretation of the scope of the particular arbitration clause in Henry Schein.

Third, dealing with the allocation of authority between a court and arbitrator, who resolves the disputes and sub-issues in the second level of disputes listed above?[10] In other words, who interprets the scope of the arbitration clause, a court or an arbitrator? The Henry Schein decision helps allocate this authority between the court and arbitrator.

The Court had established certain rules governing the allocation of decision-making authority between a judge and arbitrator in two cases prior to Henry Schien, First Options of Chicago, Inc. v. Kaplan[11] and Rent-A-Center, West, Inc. v. Jackson.[12] As a general rule, a judge typically resolves issues regarding the enforceability and scope of an arbitration clause. However, there is a special exception for this general rule. The Supreme Court in Rent-A-Center recognized that if the arbitration clause contains a delegation provision (whereby the arbitrator is delegated the power to rule on his or her own jurisdiction), the arbitrator, instead of the judge, decides disputes about the enforceability and scope of an arbitration clause.[13] As explained below, Henry Schein addressed a court split that developed surrounding Rent-A-Center and the allocation of power between a judge and arbitrator.

Consider the pro-arbitration impact of Rent-A-Center: A court facing an arbitration agreement containing delegation language is likely to rubber-stamp an order compelling arbitration, even in the face of arguments that the arbitration agreement is invalid for some reason. For example, in the case of Brumley v. Austin Centers for Exceptional Students Inc.,[14] an autistic student filed suit against a school when a school employee used excessive force to make the student board a bus and broke the student’s wrist. The arbitration clause in the student’s enrollment form contained harsh, one-sided terms, such as a provision limiting an arbitration award to “actual expenses” and an abbreviated statute of limitations period requiring all claims to be filed within 90 days of any alleged wrongdoing. Furthermore, there were some arguments that the scope of the school’s arbitration clause did not cover the student’s tort claims. Because of the harsh terms and the problematic scope of the arbitration clause, a court would arguably be justified in denying the school’s motion to compel arbitration and in finding that the arbitration clause is not enforceable. However, because of delegation language in the arbitration clause, the district court in Brumley could not consider these arguments against the enforceability of the arbitration clause.[15] Instead, the court in Brumley had to ignore obvious flaws with the harsh arbitration clause and rubber-stamp an order compelling arbitration.[16] It is therefore up to the arbitrator to determine his or her own jurisdiction and the enforceability of the arbitration clause. Note that the arbitrator’s decision is virtually unreviewable because of the extremely deferential judicial review of arbitral awards, despite the arbitrator’s possible financial self-interest in finding a dispute to be arbitrable.

The end result of Rent-A-Center is that many courts, like the district court in Brumley, simply rubber-stamp orders compelling arbitration if the arbitration agreement contains a delegation clause. To counter the rubber-stamping effect of the Court’s Rent-A-Center decision, some state and lower federal courts developed a safety-valve or exception: Delegation clauses are not enforceable in connection with wholly groundless arguments.[17] In other words, a court will not delegate wholly groundless arguments to an arbitrator. For example, suppose that a customer purchases cell-phone service with AT&T and agrees to arbitrate all disputes with AT&T related to the cell-phone account, and the arbitration clause contains a delegation provision whereby the arbitrator is supposed to resolve all disputes about the enforceability or validity of the arbitration clause. Further suppose that the customer is involved in a car accident with an AT&T truck that handles installation of equipment for satellite television services. If the customer files a lawsuit involving the car accident, and if AT&T seeks to compel arbitration in connection with such claims, then under the delegation provision, the arbitrator would decide whether the negligence claims from the accident are covered by the arbitration clause.

However, instead of wastefully sending baseless, frivolous arguments to an arbitrator, some courts have held that judges could address, and reject, wholly groundless arguments regarding the enforceability of an arbitration clause. The lower court opinions in the Henry Schein case adopted this “wholly groundless” exception to delegation.[18] Because the arbitration clause in Henry Schein excluded claims for injunctive relief, and because the plaintiff’s lawsuit included a claim for injunctive relief, it would seem that the plaintiff’s lawsuit could proceed in court because of the carve-out for injunctive relief in the arbitration clause. The lower courts in Henry Schein thought that the arguments in favor of arbitration were baseless or wholly groundless in light of this carve-out in the arbitration clause, and thus the court could immediately consider and reject these baseless arguments, without having to send the parties to an arbitrator to rule on these baseless arguments regarding arbitrability.

However, a circuit split had developed regarding the “wholly groundless” exception to Rent-A-Center.[19] While some courts, like the lower courts in Henry Schein, were willing to hear and reject wholly groundless arbitrability arguments, other courts continued to rubber-stamp orders compelling arbitration whenever a delegation clause was involved, even if the arguments in favor of arbitration were “wholly groundless.” The Supreme Court in Henry Schein addressed this circuit split over the existence of the “wholly groundless” exception to delegation.[20]

In Justice Kavanaugh’s first decision, the Court in Henry Schein unanimously held that the “wholly groundless” exception to delegation does not exist.[21] If an arbitration agreement delegates threshold arbitrability issues to an arbitrator, such as the interpretation of the scope of an arbitration clause, then a court may not override the arbitration agreement, even if the court believes that the arbitrability arguments are wholly groundless. Instead, arbitration must be compelled, and it is up to the arbitrator to consider and rule on the wholly groundless arguments. The Court reasoned that the parties bargained for an arbitrator to rule on enforceability issues, and under the FAA, courts must honor the parties’ agreement.[22] Moreover, the FAA does not contain an exception regarding wholly groundless arguments,[23] and arbitrators are qualified to deal with frivolous arguments.[24]

To illustrate the Court’s ruling in Henry Schein, suppose an arbitration clause provides that all disputes regarding one’s wages must be arbitrated, and the arbitration clause also contains a delegation provision whereby the arbitrator decides all issues regarding the enforceability and scope of the arbitration clause. Imagine that the arbitration clause also contains harsh terms such as a requirement that all claims must be submitted to arbitration in a distant state within thirty days before an arbitrator selected by the employer. Suppose that an employee files sexual harassment and assault claims in court against the employer because a manager sexually assaulted the employee, and in response, the employer raises a wholly groundless argument in favor of arbitration, such as the employee’s assault and harassment claims must be arbitrated pursuant to the arbitration clause (which narrowly covers only wage disputes). Before Henry Schein, courts could address and reject such a wholly groundless arbitrability argument and retain jurisdiction to hear the lawsuit in court, skipping the step of sending the groundless argument to an arbitrator. But now, after Henry Schein, courts must rubber-stamp an order compelling arbitration, leaving it up to the arbitrator to decide his or her own jurisdiction, including the enforceability of the harsh arbitration clause and the arbitrability of the dispute. Consequently, Henry Schein strengthens the power of arbitrators and continues the Supreme Court’s pro-arbitration trend of the delegation doctrine from Rent-A-Center. As a result, courts are less able to police or monitor arbitration clauses for harshness or fairness concerns; courts in effect are forced to rubber-stamp arbitration clauses as long as the clause includes an extra sentence delegating authority to an arbitrator.

B. New Prime’s Construction of the Transportation Worker Exemption

Section 1 of the FAA contains definitions of certain terms, as well as an exemption stating that “nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.”[25] As a result of this exemption, certain workers are not covered by the FAA and are not bound to arbitrate under the statute. A circuit split had developed concerning whether the exemption covered independent contractors,[26] and the Supreme Court granted certiorari in New Prime Inc. v. Oliveira to interpret the meaning of this exemption. The Court in New Prime ultimately held that the workers covered by this exemption included both employees and independent contractors.[27]

New Prime involved the trucking industry. The plaintiff trucker, Dominic Oliveira, filed a class-action lawsuit in federal court against New Prime, Inc., an interstate trucking company, for failure to pay minimum wage under state and federal law and violations of other laws. Whether these claims could proceed in court depended on the enforceability of an arbitration clause in the plaintiff’s contract with New Prime.

As mentioned above, the first section of the FAA contains an important exemption for certain workers. In 2001, in Circuit City Stores, Inc. v. Adams, the Supreme Court construed this exemption narrowly to refer to contracts of employment of transportation workers, not all types of workers.[28] As a result of Circuit City, the FAA generally covers all workers, but “transportation workers” are carved out and exempt from the FAA’s arbitration requirement.[29]

Following Circuit City, lower courts disagreed regarding the meaning of the phrase “contracts of employment” in the FAA’s transportation worker exemption. Several courts had held this exemption applied to transportation workers who are employees, but not independent contractors.[30] However, the First Circuit in its New Prime decision reached the opposite result and held that the exemption broadly covered all transportation workers, including both employees and independent contractors.[31]

Furthermore, another related court split developed about the correct decision-maker for the transportation-worker exemption. Some courts, including the First Circuit in New Prime, held that only a court could apply the exemption.[32] However, other courts allowed the parties to delegate to the arbitrator whether the transportation-worker exemption applied.[33] As demonstrated above with the Henry Schein case, the allocation of authority between courts and arbitrators is a continuing issue regarding the legal framework facilitating arbitration.

In a unanimous decision written by Justice Gorsuch (Justice Kavanaugh did not participate), the Supreme Court in New Prime held that courts must decide whether the transportation-worker exemption applies in a given case.[34] Using a textualist and originalist approach and examining materials from the time period of the FAA’s enactment, the Court construed the phrase “contract of employment” to include both employees as well as independent contractors.[35] The Court reasoned that the phrase “employment” is synonymous with work, without distinguishing among different classes of workers, and the FAA’s exemption also uses the broad term “worker,” a term that is broad enough to include independent contractors.[36] Because the FAA’s transportation-worker exemption applied to all transportation workers, without distinguishing between independent contractors and employees, the Supreme Court ultimately held there was no authority under the FAA to compel arbitration of Mr. Oliveira’s wage claims.

C. Hostility to Class Procedures in Lamps Plus

Lamps Plus, Inc. v. Varela involved a data breach of tax information for about 1,300 employees of Lamps Plus.[37] A few weeks after the data breach, a fraudulent tax return was filed with the IRS in the name of Frank Varela, a Lamps Plus employee. Varela then filed a putative class-action lawsuit in federal court on behalf of a class of employees whose tax information had been disclosed in the data breach. Varela had previously signed an arbitration agreement with his employer, which did not contain a class action waiver. In response to the class action lawsuit, Lamps Plus asked the court to compel arbitration on an individual basis. The district court compelled arbitration and authorized arbitration on a classwide basis.[38] The Ninth Circuit affirmed, reasoning that the arbitration clause was ambiguous regarding class arbitration.[39] Relying on California contract law, which requires that ambiguities be construed against the drafter, the employer in this case, the Ninth Circuit found the ambiguity should be resolved in favor of the employee, and class arbitration should therefore be allowed.[40]

The Supreme Court’s majority opinion, written by Chief Justice Roberts, first addressed an issue involving the appellate jurisdiction of the Ninth Circuit. To help promote a pro-arbitration scheme, § 16(b)(2) of the FAA provides that a district court order compelling arbitration is generally not appealable. Thus, it would appear that the order compelling arbitration on a classwide basis in this case could not be appealed. However, the majority relied on a different provision of the FAA, § 16(a)(3), which states that an appeal may be taken from “a final decision with respect to an arbitration that is subject to this title.”[41] Relying on an older FAA decision involving prohibitive arbitral costs, the majority explained that an order compelling arbitration and dismissing all claims counts as final and thus appealable for purposes of § 16(a)(3).[42]

After addressing the appellate jurisdiction issue, the majority held that an ambiguous arbitration agreement cannot provide the required contractual basis for compelling class arbitration under the FAA.[43] Borrowing from earlier cases like AT&T Mobility v. Concepcion,[44] the majority reasoned that class arbitration is fundamentally different from individual arbitration and undermines the benefits of arbitration. According to the majority, application of California’s contra proferentem doctrine in this case to authorize classwide arbitration would undermine a fundamental attribute of arbitration—its bilateral, simplified nature. As a result, such an application of state law would be inconsistent with the FAA, and under the reasoning of Concepcion, preempted. According to the majority, the FAA requires “more than ambiguity to ensure that the parties actually agreed to arbitrate on a classwide basis.”[45]

Although Justice Thomas joined the majority opinion in Lamps Plus, he issued a separate, concurring opinion raising concerns about the majority’s use of a broad purposes-and-objectives preemption test, just like he did in Concepcion. Instead of finding ambiguity with the arbitration clause, Justice Thomas was willing to construe the arbitration clause at issue as requiring bilateral arbitration because of explicit references in the clause to “the Company and I.”[46]

Justices Ginsburg, Breyer, Sotomayor, and Kagan each wrote strong dissenting opinions. Justice Ginsburg, joined by Justices Breyer and Sotomayor, explained that the FAA was not designed for contexts where one party lacks equal bargaining power.[47] She also emphasized the irony in the majority’s focus on the company’s lack of consent for class procedures when meaningful consent is often lacking from the perspective of a consumer or employee. Justice Ginsburg also noted the harms arising from the Court’s decisions blocking collective action.

Justice Breyer wrote a separate dissent regarding the appellate jurisdiction of the Ninth Circuit. He argued that the FAA blocks appeals of court orders compelling arbitration, and because the district court’s order compelled arbitration here (albeit class arbitration), the order was not appealable.[48]

Justice Sotomayor wrote that class arbitration does not fundamentally change the nature of arbitration.[49] According to Justice Sotomayor, the parties agreed to arbitrate according to the rules of an arbitral forum, which in turn provided for class arbitration, and the contract was at least ambiguous. Justice Sotomayor believed that the Court should not easily override California’s neutral contract rule of contra proferentem.

Similarly, Justice Kagan, joined by Justices Ginsburg, Breyer, and (in part) Sotomayor, believed that the FAA would not preempt the neutral state contract rule of contra proferentem.[50] She strongly criticized the majority for using its policy view (that class arbitration fundamentally changes the nature of arbitration) to engage in an “extraordinary displacement” of state law.[51] She asserted that the majority would always prohibit class arbitration, regardless of what state law or a contract may require.

II. How the Arbitration Docket Fits Within the Larger Arc of Arbitration Law Developments

Over the last few decades, the Supreme Court has expanded the FAA far beyond its original intent. Consequently, the enforceability of arbitration agreements, the scope of arbitrable claims, and the power of an arbitrator have grown significantly. With these expansions of arbitration law, the number of arbitration agreements has likewise exploded in American society. This section of the article situates the three arbitration cases of the October 2018 Term within this broader context of the FAA’s development. The Henry Schein and Lamps Plus decisions can be understood as continuing the arc of expansion. But as explained below, the Court finally hit a wall—the text of the FAA—in the New Prime case, where the Court rejected an expansive interpretation of the FAA.

The FAA was originally designed to be narrow in scope and applicability. The FAA, in part, helped fill a gap within a growing national economy during the early 1900s. Merchants at the time may have been hesitant to do business with other merchants in distant states because of concerns of having to litigate in a distant courthouse if disputes about interstate shipments were to arise. Before the FAA’s enactment in 1925, arbitration certainly occurred in the United States (arbitration occurred in America prior to the founding of our country); however, courts would not enforce pre-dispute arbitration agreements prior to the 1920s.[52] The drafters of the FAA wanted to make arbitration agreements enforceable, but not more enforceable than other contracts, and the law they created was not intended to incorporate a national preference for arbitration over litigation.[53] At the time of its enactment, the FAA was designed with a simple goal in mind: to reverse the prior judicial hostility against the enforcement of pre-dispute arbitration clauses and to make such clauses as enforceable as other contract terms, like price and delivery terms.[54] Under the FAA, arbitration would be compelled only when the parties choose arbitration.[55] In other words, the statute does not express or embody a preference in favor of arbitration; the statute simply declared that an arbitration agreement is enforceable when the parties voluntarily entered into such an agreement. Also, fitting with the narrow scope of the statute, § 2 of the FAA provides for the enforcement of an arbitration clause in a contract to settle “a controversy thereafter arising out of such contract.”[56] As a result, not every type of claim was intended to be covered by the FAA. Only contractually-based claims arising out of an agreement, such as disputes regarding delivery terms, prices, and the condition of shipped goods, were supposed to be covered by the statute.[57]

The Supreme Court has been erroneously expanding and rewriting the FAA since the 1980s. The last few decades of the FAA’s development in the Supreme Court can be characterized as an absurd, pro-arbitration lovefest. The Court’s interpretations of the FAA since the 1980s generally have no basis in the history or text of the statute, and are instead motivated by the Court’s wholly manufactured strong federal interest in favor of arbitration and docket-clearing.[58] Today, arbitration agreements are more enforceable than other contracts and benefit from special preferences and rules written not by Congress, but by the Court.[59] Instead of applying the FAA’s clear text, which limits coverage of the statute to claims that arise out of a contract, the Court has expanded the FAA to cover all types of claims, including claims that may have no relationship to a contract, such as statutory claims or tort claims.[60] Also, the statute was never designed to apply in the employment context, but the Court has expanded the statute to cover the vast majority of employment claims.[61] Despite the clear purpose, history, and text of the FAA, with its several explicit references to federal courts, the Court has expanded the statute so that it applies in state courts as well.[62] Although the statute was never designed for take-it-or-leave-it consumer or employment contracts,[63] the Court now routinely applies the FAA in these contexts, where meaningful consent is often lacking. As Justice O’Connor once rebuked her colleagues, “the Court has abandoned all pretense of ascertaining congressional intent with respect to the [FAA], building instead, case by case, an edifice of its own creation.”[64]

The Henry Schein decision fits this broader trend in the Supreme Court’s pro-arbitration march. The Henry Schein decision closed a loophole that developed in the wake of the Court’s 2010 decision in Rent-A-Center,[65] and further reinforced that earlier decision. When the drafting party includes an arbitration clause within an arbitration clause, whereby the parties purportedly agree to arbitrate whether they agreed to arbitrate, Henry Schein directs courts to send even baseless arguments into arbitration, thus strengthening the power of the arbitrator. Over the years, the Court has shifted the legal framework for arbitration to a model where courts no longer engage in meaningful supervision or monitoring of the fairness of arbitration clauses, and instead, courts are merely rubber-stamping arbitration clauses.

Henry Schein is part of this broader, disturbing pro-arbitration trend in the Court that has become the norm since the 1980s. However, on a spectrum of controversial decisions, with gun rights and abortion being some of the most high-profile, Henry Schein falls near the opposite end of the spectrum as a relatively obscure decision on a technical issue of arbitration law, which would not attract much negative public attention. In other words, considering public perception, the unanimous Henry Schein case seems like the ideal case to assign to Justice Kavanaugh, who was writing his first opinion for the Court, particularly after his contentious confirmation hearings. Henry Schein involves a focused, narrow, and relatively obscure point of mind-numbing arbitration law (whether the parties agreed to arbitrate whether they agreed to arbitrate a baseless claim). The facts of this particular case involve a business-to-business distribution contract between two sophisticated parties, and application of the FAA is less controversial in this context. In sum, Henry Schein is part of a troubling, pro-arbitration trend in the Supreme Court, but unsurprising and niche enough to serve as an ideal, non-controversial case to assign to a new justice.

Similarly, the majority decision in Lamps Plus also fits very well within the Supreme Court’s recent FAA cases. Considering the last few decades of FAA cases in general and the Court’s prior FAA decisions involving class actions, such as Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp.,[66] AT&T Mobility v. Concepcion,[67] American Express Co. v. Italian Colors Restaurant,[68] and last Term’s Epic Systems Corp. v. Lewis,[69] it is obvious that a majority of the Court is infatuated with arbitration, as long as it does not involve class procedures. The Lamps Plus decision and the Court’s other class arbitration cases are not really about arbitration at all; instead, these cases are best understood as reflecting the desire of certain justices to dismantle class actions.[70] Just like the Henry Schein decision, Lamps Plus perfectly fits the Court’s troubling, pro-arbitration trend, but the decision itself was unsurprising in light of the Court’s prior decisions on class arbitration.

While Henry Schein and Lamps Plus fit the mold of the Court’s prior arbitration cases, New Prime is a potentially game-changing, unexpected, landmark decision signaling a limit to the Court’s expansion of the FAA. As mentioned before, New Prime is the first decision in decades where the Court rejected an expansive view of the FAA and ruled in favor of workers. The decision in New Prime could have easily turned out the other way, with the worker being forced to arbitrate. Relying on the delegation doctrine from Rent-A-Center, the Court could have easily kicked the can down the road and sent the entire dispute to the arbitrator because of a delegation clause within the arbitration agreement. In other words, the Court could have easily found that the parties in New Prime had agreed to arbitrate everything, including arbitrability, and thus whether the trucker’s claims are arbitrable would be sent to the arbitrator to decide. Or in a Scalia-esque manner and as a tribute to the late justice, a majority of the justices could have claimed that the trucker’s arguments of non-arbitrability were “pure applesauce” considering the text of the FAA.[71] With a faux-textual analysis, the Court could have ignored certain language of the FAA while focusing on other language in a self-serving manner by emphasizing that the text of the FAA does not include a specific exception for independent contractors. Thus, Mr. Oliveira would have to arbitrate his wage claims. The Court could have also supported a result in favor of the employer by deflecting attention from the FAA and stating that all claims are generally arbitrable today, unless Congress says otherwise, and there is nothing in the Fair Labor Standards Act, the statutory foundation for the claim at issue in New Prime, preventing such claims from being arbitrated. Through a variety of different arguments based on its prior decisions, the Court could have easily justified the opposite result in New Prime and found in favor of the employer.

In light of the Supreme Court’s strong, pro-arbitration views in the last few decades, how can the victory in favor of the workers in New Prime be explained? Perhaps the New Prime decision reflects the current socio-political environment. The legal framework supporting arbitration has evolved into something so extreme, expansive, and untethered to the text, purpose, and history of the FAA that we are now seeing a stronger public backlash against the broad use of arbitration in American society compared to prior years. In the wake of the #MeToo movement, it has been recognized that arbitration in the employment context helped conceal acts of sexual harassment. Because of strong confidentiality terms and other procedural limitations often associated with arbitration agreements, it may be difficult or impossible for a victim of sexual harassment to speak to colleagues to gather information, evidence, or testimony about a hostile work environment. As a result, there has been greater public debate about curtailing the use of arbitration in recent years. Furthermore, the oral argument in New Prime occurred immediately after the contentious confirmation hearings of Justice Brett Kavanaugh, with allegations that he had sexually assaulted Dr. Christine Blasey Ford.[72] The #MeToo movement and related accountability issues became part of the public discussion surrounding Justice Kavanaugh’s confirmation hearings. Against the backdrop of the #MeToo movement, there have been stronger calls for reforming America’s arbitration laws, with unprecedented bipartisan support for bills in Congress to amend the FAA as well as bills in state legislatures to cut back on arbitration.[73] Also, private, high-profile employers such as Google have announced that they will no longer require arbitration for their employees, and with pressure from law students, some major law firms have cut back on their use of arbitration as well.[74]

The justices are likely aware of the current socio-political environment and the increasing backlash against arbitration. In her dissent in Lamps Plus, Justice Ginsburg acknowledged the “recent steps to counter the Court’s current jurisprudence [involving arbitration],”[75] such as the initiatives of private employers and pending legislation to cut back on arbitration. Being aware of the current environment, the justices may have decided to scale back on their prior aggressive, erroneous interpretations of the FAA, resulting in the aberrant decision in New Prime.

To summarize, Lamps Plus and Henry Schein were unsurprising in light of prior Supreme Court decisions, and these two cases can be viewed as a natural extension of existing and expansive (but flawed) Supreme Court interpretations of the FAA. However, New Prime suggests that the Court may be willing to put the brakes or at least a temporary pause on further expansion of the FAA.

III. How Will the Arbitration Docket Shape the Future of Arbitration and Access to Courts?

This final section explores the potential impact of these three arbitration cases. As explained below, each case leaves to be sorted out in the future other issues involving arbitration. Ultimately, the 2018 Arbitration Docket maintains a vast legal framework strongly supportive of arbitration. The widespread uses of arbitration in American society are not likely to dramatically disappear anytime soon unless Congress substantially amends and curtails the scope and power of the FAA. However, the Court’s interpretative approach in New Prime represents a more literal, textual shift that could potentially be used in future cases to reject expansive interpretations of the FAA.

A. Henry Schein

Over the years, the Supreme Court’s rulings on the FAA have created a system where courts in effect rubber-stamp orders compelling arbitration, particularly where the arbitration clause contains a delegation provision. Henry Schein continues and strengthens this rubber-stamping framework. As a result, more power has shifted to private arbitrators, whose decisions are in effect unreviewable, and courts must still compel arbitration, even in the face of baseless claims regarding the enforceability of arbitration clauses.

The rubber-stamping of arbitration agreements by the judiciary raises concerns, particularly when vulnerable parties and a lack of bargaining power are involved. Who is now guarding the entrance to the system of private arbitration, making sure that agreements to arbitrate are not unduly harsh or unconscionable? Henry Schein did not start this trend, but the decision weakens the power of courts to serve as gatekeepers to the expansive private system of arbitration.

Furthermore, the ruling in Henry Schein applied to a contractual relationship between two relatively sophisticated parties: a manufacturer and a distributor. Consider the impact of Henry Schein in other arbitration settings, such as an employee-employer relationship or customer-company relationship, involving a stark imbalance in bargaining power between the parties. A consumer or employee who is attempting to assert a legitimate consumer-protection or civil-rights claim may now be forced to pay for an arbitration so that the arbitrator can consider (and hopefully reject) a clearly baseless arbitrability claim. But whatever the arbitrator decides is largely unreviewable, and the arbitrator may have a financial self-interest to find the matter to be arbitrable. Perhaps in these hypothetical scenarios with a consumer or employee and a baseless arbitrability claim raised by the stronger party, an arbitrator could allocate all fees to the employer or company raising the baseless arguments, but such an allocation of fees is not guaranteed. As a result, the threat or possibility of having to pay for an arbitration hearing to reject baseless arbitrability arguments may burden some weaker parties who have legitimate claims on the merits and possibly even discourage them from pursuing their underlying merits claims at all. Baseless claims about arbitrability arguably deserve to be considered and quickly rejected in public court proceedings. However, after the Henry Schein decision, a defending party in a lawsuit can, in effect, impose a baseless procedural hurdle involving fake arbitrability arguments, and the injured victim must now cross this arbitral hurdle (and maybe even pay for the arbitral proceeding) before the legitimate claims on the merits will hopefully proceed in court.

Another problem with the Court’s decision in Henry Schein involves the strong displacement of judicial power, the scope of which will very likely be the subject of future litigation. For example, if a party files a motion to enforce an obviously defective arbitration clause using baseless arbitrability arguments, judges under Henry Schein have no power to resolve and reject the arbitrability disputes when the language of the defective arbitration clause delegates arbitrability questions to an arbitrator. Additionally, the decision in Henry Schein may undermine courts’ power to sanction baseless arguments. Federal courts generally have an inherent power to control proceedings before them and issue sanctions, as well as a sanctioning power found in Rule 11 of the Federal Rules of Civil Procedure and a sanctioning power found in 28 U.S.C. § 1927. While Henry Schein did not discuss whether the FAA has displaced these federal powers, rules, or statutes governing sanctions, it suggests that courts may be powerless when faced with baseless arbitrability arguments that are supposed to be addressed by an arbitrator.

Finally, the Henry Schein decision leaves open an important issue regarding the power of an arbitrator. Under the First Options framework, threshold arbitrability issues can be sent to an arbitrator if there is “clear and unmistakable” evidence the parties agreed to do so.[76] Currently, there is a court split regarding whether the mere incorporation of the arbitration rules of a provider like the American Arbitration Association (whose rules grant an arbitrator power to decide the arbitrator’s own jurisdiction) counts as “clear and unmistakable” evidence of delegation. Some courts believe that merely incorporating the arbitration rules of the American Arbitration Association can qualify as a clear, unmistakable delegation of authority to an arbitrator,[77] but other courts require arbitration agreements to contain a more explicit delegation of authority to an arbitrator.[78] At the very end of the Court’s opinion in Henry Schein, the Court stressed that it was “express[ing] no view about whether the contract at issue in this case in fact delegated the arbitrability question to an arbitrator.”[79] Thus, it is not clear whether the mere reference to certain arbitral rules qualifies as a proper delegation of authority to an arbitrator.

B. Lamps Plus

With its hostility toward class procedures, Lamps Plus follows in the vein of several cases, like Stolt-Nielsen, Concepcion, American Express, and Epic Systems, to have a deleterious impact on class actions. It is important to note that the majority of America’s largest companies draft consumer arbitration agreements with explicit class-action waivers but less frequently include class-action waivers in the employment context.[80] The most direct impact of Lamps Plus will be in cases where an arbitration clause does not contain an explicit class-action waiver. According to Lamps Plus, in situations where a court is faced with an arbitration clause that is silent or ambiguous regarding the availability of class procedures, a court should compel arbitration on a bilateral basis. Lamps Plus continues the problem that arbitration can be used to eliminate class-action liability, which is probably a core reason why so many corporate parties utilize arbitration clauses in their customer contracts.

After Lamps Plus, class arbitrations may still occur, but the door may be shutting. The Court in Lamps Plus seems to have left undisturbed its prior decision in Oxford Health Plans v. Sutter.[81] Unlike in Lamps Plus, in Oxford Health Plans, an arbitrator, not a judge, construed the arbitration clause as providing for class arbitration, and the Court held that the arbitrator’s decision, even if erroneous, may still stand in light of the narrow and extremely deferential judicial review of arbitral awards. In other words, if an arbitrator finds that class arbitration should occur and the arbitrator grounds his or her decision on a reading of the contract, the protective veil of arbitration will likely shield the arbitrator’s determination, even if a court finds that the arbitrator made a serious error in interpretation. But if the arbitration clause contains an explicit class-action waiver, this issue is not likely to arise. And given the Court’s demonstrated disfavor of class actions, the days of an arbitrator being allowed to construe an arbitration clause for the availability of class procedures may, too, be numbered.

When an arbitration clause does not contain a class-action waiver, who decides whether the clause allows for class arbitration? A footnote in the majority opinion in Lamps Plus mentions that this issue of who is the correct decision-maker has not been decided, and, in fact, heavily split the Court in the case of Green Tree Financial Corp. v. Bazzle.[82] The justices in the majority in Lamps Plus are not fans of class procedures. Consequently, they probably do not want arbitrators to make this determination, because under Oxford Health Plans, an arbitrator’s decision in favor of class arbitration will be somewhat insulated from judicial review, even if the arbitrator’s decision is seriously erroneous. As a result, I expect that a majority of justices in the future will hold that a court, and not the arbitrator, is generally the correct decision-maker to construe whether an arbitration clause authorizes class procedures.

C. New Prime

New Prime recognizes that transportation workers are not covered by the FAA, regardless of whether the worker is an employee or independent contractor. Going forward, there are likely to be fights over the contours of who counts as a transportation worker for the purposes of the FAA exemption. A recent decision found that Amazon delivery drivers qualify for the FAA’s transportation-worker exemption, and based on briefing in the case, it appears that some or possibly all of these Amazon drivers were local drivers who made intrastate deliveries.[83] However, there are other decisions suggesting that local delivery drivers will not fall under the transportation-worker exemption.[84] Lower courts will have to sort out who counts as a transportation worker for the purposes of the exemption.

Furthermore, what happens once a worker qualifies for the transportation-worker exemption? It is clear that the FAA does not apply to such a worker. However, can state law, such as state arbitration law or state contract law, fill in the gap, and can such a worker still be compelled to arbitrate pursuant to state law? Before New Prime, the Third Circuit, in Palcko v. Airborne Express, Inc.,[85] held that transportation workers may still be compelled to arbitrate pursuant to state laws. However, the Court in New Prime stated that the different sections of the FAA should be read together as “integral parts of a whole.”[86] As a result, § 1 of the FAA (which contains the transportation-worker exemption) and § 2 (which declares that arbitration agreements are binding) must be construed together. Because § 2 applies in the states, according to the Supreme Court’s decision in Southland Corp. v. Keating,[87] and § 1 is inseparable from § 2, according to New Prime, § 1 should also govern in the states. Consequently, it appears that states must also honor the transportation-worker exemption, calling into question the Third Circuit decision in Palcko. Thus, going forward, courts will have to sort out the role of state law in connection with the transportation-worker exemption.

Out of the three cases from the Supreme Court’s 2018 Arbitration Docket, the most unusual or surprising was New Prime. As noted above, the justices could have crafted an entirely different result in New Prime in favor of the employer. Instead, the justices all appeared to search for the original meaning of the FAA, and they adopted a more textualist and originalist approach compared to prior FAA cases, examining what the language in the statute would have meant back in the 1920s. If the Supreme Court had undertaken an originalist approach when interpreting the FAA in prior decisions from the last few decades, we would have a very different and more limited legal framework today governing arbitration, where employment, consumer, and statutory claims would not be arbitrated under the FAA, and the FAA would not be applicable in state courts.[88] The originalist and textualist approach in New Prime is striking when compared to prior Supreme Court cases involving the FAA. In fact, the approach was so striking that it prompted Justice Ginsburg to write a concurring opinion noting that such a strong, textualist, originalist approach may not be appropriate in all settings.[89] She was probably concerned about the use of such an approach in more controversial areas, such as abortion cases or in connection with the interpretation of the Constitution.

This textualist, originalist approach from New Prime, if and when it is used in future cases, can reshape arbitration law. For example, through the Mitsubishi trilogy from the 1980s, the Court has repeatedly held that statutory claims are generally arbitrable pursuant to the FAA, unless there is something in the text, history, or policy of the statute showing that Congress intended to preclude a waiver of judicial remedies for that particular statutory claim.[90] But, the Court is ignoring the text of the FAA with this test. With a bit of smoke and mirrors, the Court in the Mitsubishi trilogy adopted an arbitrability test which re-directs our gaze away from the FAA to focus exclusively on the text, history, and purpose of the statutory merits claim to be arbitrated. As a result of the Mitsubishi trilogy, virtually every claim is now arbitrable.

Justice Blackmun in dissent in the one of the Mitsubishi trilogy cases bluntly observed that these cases were being driven more by policy than the text of the FAA. He explained that “[the majority’s decision is] no doubt animated by its desire to rid the federal courts of these suits.”[91] The Court’s preference for arbitration, motivated by a desire or policy for docket clearing, helped drive the holdings in the Mitsubishi trilogy. However, thirty years later, a unanimous Court in New Prime cautioned against the use of policy to “pave over” or rewrite the text of a statute. Applying this approach broadly would basically overturn the last few decades of the Court’s FAA decisions.[92]

If one puts aside flawed reading of the FAA as expressing a pro-arbitration policy and instead engages in the textualist, originalist approach found in New Prime, one would see that statutory claims are not covered by the FAA. The FAA’s coverage is limited to written provisions in a contract “to settle by arbitration a controversy thereafter arising out of such contract.”[93] This key limitation regarding the coverage of the FAA, which the Court willfully ignored in the Mitsubishi trilogy, means the FAA was not supposed to apply to tort claims or statutory claims that can be asserted without reference to a contract. For example, the right to be free from bodily harm or the right to be free from discrimination, or more generally rights that arise from a statute, do not necessarily depend on or arise out of a contract. From a pure textual perspective, personal injury and tort claims, employment discrimination claims, civil rights claims, and other statutory claims were simply not intended to fall within the coverage of the FAA. Moreover, an examination of the legislative history confirms this textual, more limited reading of the FAA. The legislative history is filled with examples of contractual disputes about shipped goods, not statutory or tort claims.

Going forward, it is not likely that the justices will use the textualist, originalist approach in all FAA cases, particularly where the Court has already spoken about an issue and stare decisis rears its head. In other words, the justices are unlikely to dramatically rewrite the last 40 years of expansive FAA cases. However, they could chip away at prior holdings with more textual readings, and there are many court splits involving the FAA that the Court has not expressly addressed yet, such as splits involving the meaning of arbitration, jurisdiction in connection with motions to vacate or confirm arbitral awards, subpoena powers under the FAA, waiver, the availability of preliminary relief from a court, and many other arbitration-related topics. There are many unanswered questions in arbitration law. To the extent that the Court or lower courts utilize the textualist, originalist approach from New Prime, there could be more restrained, limited interpretations of the FAA in the future. I do not expect the existing broad legal framework supporting arbitration or the number of arbitration clauses to dramatically shrink in the foreseeable future unless Congress takes action, but New Prime could impact the judicial fine-tuning of the FAA going forward. Such a textual, originalist approach utilized in New Prime probably reflects or resonates with the Court’s conservative majority, especially with the addition of Justices Gorsuch and Kavanaugh.


The FAA, enacted in 1925, is fast approaching its one-hundredth anniversary. It is a relatively sparse statute, originally designed for a limited scope and purpose. However, since the 1980s, the Supreme Court has erroneously expanded and completely transformed the statute. This judicial expansion of the FAA, led by the Supreme Court, has given rise to many conflicting decisions in state courts and lower federal courts. As illustrated by the Supreme Court’s 2018 Arbitration Docket, there can be significant, time-consuming litigation about arbitration, fighting over where the parties may ultimately fight, without even reaching the merits of an underlying dispute. The Supreme Court’s 2018 Arbitration Docket serves as a reminder that the FAA is badly in need of reform. The current legal framework for arbitration, a framework which is harsh in many respects, collapses upon serious scrutiny of the text, history, or purpose of the FAA. Currently pending in Congress are bills to amend the FAA, such as the Forced Arbitration Injustice Repeal Act,[94] and it is the author’s hope that Congress will turn to arbitration reform, which can impact the enforcement of virtually every substantive area of law in America.

Szalai is the Judge John D. Wessel Distinguished Professor of Social Justice, Loyola University New Orleans College of Law

[1] Federal Arbitration Act, Pub. L. No. 68–401, 43 Stat. 883 (codified as amended at 9 U.S.C. § 1 et seq.).

[2] Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S. Ct. 524 (2019).

[3] New Prime Inc. v. Oliveira, 139 S. Ct. 532 (2019).

[4] Lamps Plus, Inc. v. Varela, 139 S. Ct. 1407 (2019).

[5] Alexander Colvin, Econ. Policy Inst., The Growing Use of Mandatory Arbitration  (2017); Imre Stephen Szalai, The Prevalence of Consumer Arbitration Agreements by America’s Top Companies, 52 U.C. Davis L. Rev. Online 233 (2019 [hereinafter Szalai, Prevalence of Consumer Arbitration]; Imre Stephen Szalai, The Emps. Rights Advocacy Inst. For Law and Policy, The Widespread Use of Workplace Arbitration Among America's Top 100 Companies (2018) [hereinafter Szalai, Widespread Use of Workplace Arbitration] .

[6] Henry Schein, 139 S. Ct. at 531.

[7] Id. at 528.

[8] Id.

[9] Id. at 527–28.

[10] Id. at 528.

[11] First Option of Chicago, Inc. v. Kaplan, 514 U.S. 938 (1995).

[12] Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63 (2010).

[13] See id.

[14] Brumley v. Austin Ctrs. for Exceptional Students Inc., No. CV–18–00662, 2019 WL 1077683 (D. Ariz. Mar. 7, 2019).

[15] Id. at *3–4.

[16] Id. at *3.

[17] See, e.g., Galen v. Redfin Corp., No. 14–CV–05229–TEH, 2015 WL 7734137, at *5 (N.D. Cal. Dec. 1, 2015) (noting that some courts had recognized a “wholly groundless” exception to arbitrability).

[18] See Archer & White Sales, Inc. v. Henry Schein, Inc., 878 F.3d 488 (5th Cir. Dec. 21, 2017); Archer & White Sales, Inc. v. Henry Schein, Inc., No. 2:12–cv–572–JRG, 2017 WL 3193260 (E.D. Tex. July 26, 2017).

[19] Compare Archer & White Sales, Inc., 878 F.3d at 488, Simply Wireless, Inc. v. T-Mobile U.S., Inc., 877 F.3d 522 (4th Cir. 2017), Douglas v. Regions Bank, 757 F.3d 460 (5th Cir. 2014), Turi v. Main Street Adoption Servs., LLP, 633 F.3d 496 (6th Cir. 2011), and Qualcomm, Inc. v. Nokia Corp., 466 F.3d 1366 (Fed. Cir. 2006), with Belnap v. Iasis Healthcare, 844 F.3d 1272 (10th Cir. 2017), Jones v. Waffle House, Inc., 866 F.3d 1257 (11th Cir. 2017), and Douglas, 757 F.3d at 464 (Dennis, J., dissenting).

[20] Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S. Ct. 524, 528–30 (2019).

[21] Id. at 531.

[22] Id. at 529.

[23] Id. at 530.

[24] Id. at 531.

[25] 9 U.S.C. § 1.

[26] Compare Oliveira v. New Prime, Inc., 857 F.3d 7 (1st Cir. 2017), and In re Van Dusen, 654 F.3d 838 (9th Cir. 2011), with Green v. SuperShuttle Int’l, Inc., 653 F.3d 766 (8th Cir. 2011).

[27] New Prime, Inc. v. Oliveira, 139 S. Ct. 532, 543–44 (2019).

[28] Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 119 (2001). Circuit City’s holding is deeply flawed. Based on archival materials, my historical research regarding the drafting of the FAA demonstrates that Congress originally intended to exclude all types of workers, not just transportation workers, from the scope of the FAA. See generally Imre Szalai, Outsourcing Justice: The Rise of Modern Arbitration Laws in America (2013).

[29] Circuit City Stores, 532 U.S. at 119.

[30] See, e.g., Performance Team Freight Sys., Inc. v. Aleman, 194 Cal. Rptr. 3d 530 (Cal. Ct. App. 2015).

[31] Oliveira v. New Prime, Inc., 857 F.3d 7, 22 (1st Cir. 2017).

[32] Oliveira, 857 F.3d at 24.

[33] Green v. SuperShuttle Int'l, Inc., 653 F.3d 766, 769 (8th Cir. 2011).

[34] New Prime, Inc. v. Olivera, 139 S. Ct. 532, 537–38 (2019).

[35] Id. at 539–41.

[36] Id. at 539–43.

[37] Lamps Plus, Inc. v. Varela, 139 S. Ct. 1407, 1412 (2019).

[38] Varela v. Lamps Plus, Inc., No. ED CV 16–577 DMG (KSx), 2016 WL 9211655, at *3 (C.D. Cal. Dec. 27, 2016).

[39] Varela v. Lamps Plus, Inc., 701 F. App’x 670, 673 (9th Cir. 2017).

[40] Id. at 673.

[41] Lamps Plus, 139 S. Ct. at 1414 (quoting 9 U.S.C. § 16(a)(3)).

[42] Id.

[43] Id. at 1415.

[44] AT&T Mobility v. Concepcion, 563 U.S. 333 (2011).

[45] Lamps Plus, 139 S. Ct. at 1415.

[46] Id. at 1419–20 (Thomas, J., concurring).

[47] Id. at 1420 (Ginsburg, J., dissenting).

[48] Id. at 1422 (Breyer, J., dissenting).

[49] Id. at 1427 (Sotomayor, J., dissenting).

[50] Id. at 1431–33 (Kagan, J., dissenting).

[51] Id. at 1434 n.8.

[52] Ian R. Macneil, American Arbitration Law: Reformation, Nationalization, Internationalization 19–20 (1992).

[53] The legislative history of the FAA recognizes the need to reverse the prior judicial hostility against the enforcement of arbitration agreements by making such agreements as enforceable as other contracts. Nowhere in the legislative history is there any expression of a national policy in favor of arbitration over litigation or of making arbitration agreements more enforceable than other agreements. See generally Bills To Make Valid And Enforceable Written Provisions Or Agreements For Arbitration Of Disputes Arising Out Of Contracts, Maritime Transactions, Or Commerce Among The States Or Territories Or With Foreign Nations, Joint Hearings on S. 1005 and H.R. 646 before the Subcommittees of the Committees on the Judiciary, 68th Cong., 1st Sess. (1924); A Bill Relating to Sales and Contracts to Sell in Interstate and Foreign Commerce; and a Bill to Make Valid and Enforceable Written Provisions or Agreements for Arbitration of Disputes Arising out of Contracts, Maritime Transactions, or Commerce Among the States or Territories or With Foreign Nations, Hearings on S. 4213 and S. 4214 Before a Subcommittee of the Senate Committee on the Judiciary, 67th Cong. (1923) [hereinafter 1923 Hearings].

[54] Id.

[55] 1923 Hearings, supra note 53, at 10 (in response to questioning from a senator, one of the FAA’s drafters explained that the FAA was not intended to apply to non-negotiable, take-it-or-leave-it contracts).

[56] 9 U.S.C. § 2.

[57] For a more detailed exploration of the history of the FAA’s enactment, please see Szalai, supra note 8.

[58] Cf. Shearson/Am. Express, Inc. v. McMahon, 482 U.S. 220, 268 (1987) (Blackmun, J., dissenting) (the majority’s decision to expand the FAA is “no doubt animated by its desire to rid the federal courts of these suits”).

[59] For example, the presumption of arbitrability when interpreting the scope of an arbitration clause is not discussed anywhere in the FAA; instead, the Court created this special presumption in Moses H. Cone Mem’l Hosp. v. Mercury Const. Corp., 460 U.S. 1, 24 (1983).

[60] See, e.g., Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (1985).

[61] See generally Szalai, supra note 57.

[62] See generally Macneil, supra note 52.

[63] 1923 Hearings, supra note 53, at 10 (in response to questioning from a senator, one of the FAA’s drafters explained that the FAA was not intended to apply to non-negotiable, take-it-or-leave-it contracts).

[64] Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 283 (1995) (O’Connor, J., concurring).

[65] Rent-A-Center, West, Inc. v. Jackson, 561 U. S. 63 (2010).

[66] Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U. S. 662 (2010).

[67] AT&T Mobility v. Concepcion, 563 U.S. 333 (2011).

[68] Am. Express Co. v. Italian Colors Rest., 570 U. S. 228 (2013).

[69] Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612 (2018); see also Charlotte Garden, Epic Systems v. Lewis: The Return of Freedom of Contract in Work Law?, 2 Am. Const. Soc’y Sup. Ct. Rev. 137 (2018).

[70] Cf. American Express, 570 U.S. at 252 (Kagan, J., dissenting) (“To a hammer, everything looks like a nail. And to a Court bent on diminishing the usefulness of Rule 23, everything looks like a class action, ready to be dismantled.”).

[71] King v. Burwell, 135 S. Ct. 2480, 2501 (2015) (Scalia, J., dissenting).

[72] Christine Hauser, The Women Who Have Accused Brett Kavanaugh¸ N.Y. Times (Sept. 26, 2018).

[73] See, e.g., Ending Forced Arbitration of Sexual Harassment Act of 2017, S.2203, 115th Cong. (2017); A.B. 3080, 2018 Leg., Reg. Sess. (Cal. 2018).

[74] Google Will No Longer Require Arbitration to Resolve Worker Disputes, MarketWatch (Feb. 21, 2019); Angela Morris, Why 3 BigLaw Firms Ended Use of Mandatory Arbitration, A.B.A. J. (June 1, 2018); Karen Sloan, Big Law Is Targeted—In Person—By Law Students Opposing Mandatory Arbitration, (Mar. 26, 2019).

[75] Lamps Plus, Inc. v. Varela, 139 S. Ct. 1407, 1422 (2019) (Ginsburg, J., dissenting).

[76] First Option of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995).

[77] Spirit Airlines, Inc. v. Maizes, 899 F.3d 1230 (11th Cir. 2018) (holding that incorporation of AAA rules clearly and unmistakably delegates arbitrability issued to the arbitrator).

[78] Chesapeake Appalachia v. Scout Petroleum, 809 F.3d 746 (3d Cir. 2016).

[79] Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S. Ct. 524, 531 (2019).

[80] See generally Szalai, Prevalence of Consumer Arbitration; Szalai, Widespread Use of Workplace Arbitration, supra note 5.

[81] Oxford Health Plans v. Sutter, 569 U. S. 564 (2013).

[82] Green Tree Fin. Corp. v. Bazzle, 539 U.S. 444 (2003).

[83] See Rittmann v., Inc., No. C16–1554–JCC, 2019 WL 1777725, at *7 (W.D. Wash. Apr. 23, 2019).

[84] Magana v. DoorDash, Inc., 343 F. Supp. 3d 891, 899 (N.D. Cal. 2018) (“[Plaintiff] does not allege that he ever crossed state lines as part of his work. As such, there is no allegation that he engaged in interstate commerce . . . .”).

[85] Palcko v. Airborne Express, Inc., 372 F.3d 588 (3d Cir. 2004).

[86] New Prime Inc. v. Oliveira, 139 S. Ct. 532, 538 (2019).

[87] Southland Corp. v. Keating, 465 U.S. 1 (1984).

[88] See generally Macneil, supra note 52.

[89] New Prime, 139 S. Ct. at 544 (Ginsburg, J., concurring).

[90] Mitsubishi Motors Corp. v. Soler Chrysler–Plymouth, Inc., 473 U.S. 614 (1985).

[91] Shearson/Am. Express, Inc. v. McMahon, 482 U.S. 220, 268 (1987).

[92] New Prime, 139 S. Ct. at 543.

[93] 9 U.S.C. § 2.

[94] Forced Arbitration Injustice Repeal Act. S. 610, 116th Cong. (2019).