Supreme Court Trims Judicial Role Under Federal Arbitration Act -
The Federal Arbitration Act (FAA), 9 U.S.C. § 1 et seq., continues its ubiquitous presence on the U.S. Supreme Court’s docket. Hardly a Term has gone by in recent years without at least one decision by the Court interpreting and applying the statute, and this Term is no exception; no fewer than three merits cases on the Court’s docket arise under the Act.
The first of those cases to be decided, Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S. Ct. 524 (2019), presented a perennial issue: who decides whether a particular dispute is subject to arbitration—a court or an arbitrator? As the Court has previously explained, contracting parties are free to delegate this “arbitrability” (or “gateway”) issue itself to an arbitrator. Notwithstanding that rule, at least four federal courts of appeals—the Fourth, Fifth, Sixth, and Federal Circuits—held in recent years that courts always remain free to decide arbitrability disputes where the arguments in favor of arbitration are “wholly groundless.” In contrast, two other federal courts of appeals—the Tenth and Eleventh Circuits—rejected the “wholly groundless” exception, and held that the FAA requires courts to enforce agreements to arbitrate arbitrability no matter how far-fetched the arguments in favor of arbitration.
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