By Thomas Carbonneau. 113 Penn St. L. Rev. 983.
This is a time of affirmation and trepidation for the law of arbitration. Last term, the U.S. Supreme Court decided Hall Street Associates, LLC v. Mattel, Inc., holding that contract freedom in arbitration was not absolute and that the grounds in FAA § 10 were “exclusive.” This term, the U.S. Supreme Court granted certiorari to three arbitration cases. It has rendered two opinions already that signify the Court’s continuing support for and approval of arbitration. In Vaden v. Discover Bank, the Court resolved a circuit split by endorsing the “look through” approach “to determine whether federal-question jurisdiction exists over the underlying petition.” This approach favors the recourse to arbitration and its regulation by federal law. In 14 Penn Plaza v. Pyett, the Court confirmed the subject-matter arbitrability of discrimination claims that are submitted to arbitration by the parties in a provision of the collective bargaining agreement (CBA). It thereby reduced the precedential significance of Alexander v. Gardner-Denverto its “narrow holding.” When the arbitration agreement clearly provides for the arbitrability of statutory rights, all such rights are arbitrable under federal law. Accordingly, the Court aligned both forms of workplace arbitration, unionized and nonunionized, to the arbitrability holdings in Mitsubishi, Rodriguez, and Gilmer . . . [keep reading]