The University of Missouri School of Law is hosting an online, mini-symposium about the Supreme Court’s New Prime decision (click here to visit the symposium’s webpage), with contributions from scholars and arbitrators. I wrote a short piece for the symposium, and I argue that the Supreme Court painted itself into a corner with its New Prime case. New Prime raises the issue of whether the transportation worker exemption in section 1 of the FAA preempts state laws and applies in state court proceedings. The Court in New Prime discusses that sections 1, 2, 3, and 4 of the FAA are “integral parts of a whole.” If this conceptualization of the FAA as a unitary, comprehensive statute is correct, the FAA does not apply in state court because sections 3 and 4 refer exclusively to federal courts. Thus, the Court’s 1984 decision in Southland (holding that the FAA applies in state court) is deeply flawed (which I believe, for many reasons, it is). This unitary, comprehensive view of the FAA set forth in New Prime could force the Court to confront its old Southland decision, which could lead to the unravelling of decades of flawed, unconstitutional decisions built on Southland.
I’m wondering if Justice Thomas had a good sidebar conversation with the new Justices about his views on Southland. With my wishful thinking, I’m probably reading way too much in the tea leaves. But the language in both Justice Gorsuch’s New Prime decision and Justice Kavanaugh’s Henry Schein decision from last week suggests to me that they are skeptical of Southland and the FAA’s applicability in state court. For the litigators out there who are battling the enforceability of an arbitration clause in state court, consider preserving and raising for appeal the continued validity of Southland in order to bring a good test case. Please reach out if you would like amicus support.