Originally from Alternatives to the High Cost of Litigation

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One of the most confounding doctrines in federal arbitration jurisprudence is the severability doctrine.

The U.S. Supreme Court has held, since Prima Paint Corp. v. Flood & Conklin Mfg., 388 U.S. 395 (1967) (available at http://bit.ly/2DOWum4) that courts must enforce arbitration clauses within contracts, even if the entire contract is invalid or unenforceable. (Most non-arbitration geeks don’t believe us when we tell them that’s the law.)

The only time a court can address the argument for invalidity is if the litigant directs it specifically at the arbitration clause. For example, an argument that the elves’ contract with Santa is invalid because it’s illegal to pay them in candy canes is an argument about the contract as a whole, and would get sent to arbitration if the elves’ contract had a valid arbitration clause.