Originally from Alternatives to the High Cost of Litigation

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The almost-shocking volume of U.S. Supreme Court arbitration matters accepted, heard, and decided in the 2021-2022 term—five cases that were granted cert between November and mid December just after an initial ADR case was argued—continued to surprise into May and June as the opinions emerged.

A Court historically concerned with getting matters arbitrated where contracts cover the ADR process looked at arguments by individuals resisting arbitration processes and found them worthy. The Court decided in the individuals’ favor in three of the five argued matters, declining to compel arbitration in two of them and providing a state court path to challenge an arbitration award in a third. (The Court had consolidated two of the cases related to international arbitrations into one long argument for a total of five cases in the term.)

The sudden Court sympathy for individuals in arbitration made sense on reflection: the textual approach (see the accompanying commentary by law professor Imre Szalai on the cover of this issue (page 121)) that provided two plaintiffs their wish to litigate despite employment agreements’ arbitration requirements emerged three years ago, in the arbitration case of New Prime v. Oliveira, 139 S. Ct. 532 (2019) (available at http://bit.ly/34N4VKM). In New Prime, Justice Neil Gorsuch, in his first Supreme Court arbitration opinion, interpreted the Federal Arbitration Act Sec. 1 exemption from arbitration to include an independent contractor/interstate truck driver.