From Volume 89, Number 1 (November 2015)
Mandatory predispute arbitration clauses requiring individual, final, and binding arbitration and excluding all class or representative actions, whether in court or arbitration, are often embedded in employment contracts and nearly all aspects of commercial and consumer transactions. The Federal Arbitration Act (“FAA”) requires courts to enforce agreements to arbitrate. However, both state and federal administrative agencies regulate the sectors in which arbitration contracts are used. Likewise, state and federal legislation may authorize or “deputize” private individuals to assert representative private attorney general or qui tam actions to enforce legislation on behalf of the state or agency. Strict enforcement of these arbitration clauses can thus impair an individual’s access to legislative and administrative schemes otherwise established to address specific areas of public policy.
This Article examines the impact of private arbitration on individuals’ rights to access agency regulatory procedures and to assert representative claims under state laws authorizing private attorney general or federal quitam enforcement. Although the scope of FAA preemption is established doctrine, state and federal courts continue to variously analyze the FAA’s preemptive impact on administrative and regulatory schemes. For instance, courts differ on how to square FAA preemption against regulatory administrative procedures providing substantive protections, laws that “deputize” aggrieved individuals to assert representative claims on behalf of the government, and situations in which a federal agency has declared its statutory scheme exempt from FAA preemption.
This Article argues that the FAA, where applied to preempt and thus deny access to simplified and protective state and federal agency procedures, violates not only constitutional guarantees of federalism, with regard to the states’ sovereign right to regulate traditional matters of public concern, but also separation of powers. Established doctrine, requiring exhaustion of administrative remedies, deference to agency rulings and expertise, as well as respect for state authority under the FAA’s “savings clause,” also supports maintaining such access. This Article proposes alternative reforms to retain the benefits of agency regulation and expertise while respecting contractual obligations and promoting informed decision-making.