Tamar Meshel and Moin A. Yahya both of the University of Alberta – Faculty of Law, have written The Gatekeepers of the Federal Arbitration Act: An Empirical Analysis of the FAA in the Lower Courts, forthcoming in the Mississippi Law Journal. Here’s the abstract:
This article presents the results of the first comprehensive empirical study of motions to compel arbitration under the Federal Arbitration Act (FAA). Arbitration has become a divisive issue both in the United States Supreme Court and in American society, fueling calls to restrict or entirely ban its use in certain contexts, such as employment and consumer disputes. At the same time, little empirical attention has been paid to how thousands of arbitration cases are actually argued before and decided by the lower courts—the gatekeepers of the FAA—who retain considerable discretion to refuse to enforce arbitration agreements.
Our study statistically analyzes an original hand-coded dataset of 1,450 decisions in contested motions to compel arbitration under the FAA, rendered by all state and federal courts (excluding the Supreme Court) across the United States between June 1, 2021 and May 31, 2022. We examine the effect of different variables on the outcome of these motions to compel arbitration. We find that the strongest predictors of the outcome of such motions are the arguments raised by the parties (e.g., existence/formation of the arbitration agreement, scope of the arbitration agreement, etc.), the types of disputes that we tested (e.g., business, employment, consumer, etc.), and specific combinations of the political association of the judge (Democratic/Republican) with type of court (state/federal) and level of court (trial/appellate).
The goal of our study is explanatory as well as normative. We aim to provide a detailed and objective account of parties’ and lower courts’ approaches to FAA arbitration. This account is not merely of academic interest to those studying arbitration or judicial decision-making. It also offers important insights for parties’ litigation strategy and equips policy-makers with important empirical data for evaluating the FAA.
