The Lost Controversy Limitation of the Federal Arbitration Act

Stephen E. Friedman *

The Supreme Court has elevated private arbitration agreements above the primary statute that governs them. This empowering of private parties at the expense of Congress has resulted in a proliferation of extremely broad arbitration provisions. An arbitration provision enforced in a recent case is illustrative. A provision in an employment contract compelled the parties to arbitrate “any legal or equitable claim, demand, or controversy, whether in tort, in contract, or under statute which relates to, arises from, concerns, or involves [the employment] in any way.” For good measure, the provision also required the arbitration of “any other matter related to the relationship between the Employee and the [employer], including, by way of example and without limitation, allegations of prohibited forms of employment discrimination such as discrimination based on race, religion, color, sex or age.” Such a provision is certainly broad enough to cover alleged violations of federal and state statutes. Accordingly, when a fired employee sued for violation of the Age Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964, and the New Mexico Human Rights Act, the court enforced the arbitration provision under the Federal Arbitration Act (the “FAA”), staying the litigation and compelling the parties to arbitrate.

Continue reading.


 

* Associate Professor of Law, Widener University School of Law, Wilmington, Delaware; J.D., 1992, Harvard Law School; B.A., 1989, Yale College. I am very grateful to many people for their insights and encouragement. I owe particular thanks to Sue Friedman, David Horton, John Massaro, and Doretta Massardo McGininis for their helpful comments.