Part IIIC: Is the Narrow Construction Sustainable?
Introduction
In Part IIIB (here) we discussed in general terms the “Narrow Construction” of the Arbitration Fairness Act of 2009 (the “Fairness Act”), which would limit the scope of Proposed Section 2(c) to situations where the party resisting arbitration claims that the arbitration agreement requires predispute arbitration of consumer, franchise, employment or statutory civil rights disputes. We also set forth the five premises on which the Narrow Construction is based. This Part IIIC addresses the validity of those premises. [Because this post frequently refers to Proposed Section 2 and its subsections, we have reproduced at the end the pertinent parts of Proposed Section 2.]
The Narrow Construction is fairly complex. A court choosing it would have to determine each of its five premises to be valid. In addition, the validity of Premise 3 is interlinked to that of Premise 5: Premise 3 is easier to accept when viewed without regard to Premise 5 and Premise 5 is harder to accept when viewed in isolation from Premise 3. If a court believes that Premise 3 is reasonable, but has reservations about its validity, when it considers Premise 3 in conjunction with Premise 5, it may conclude that both are invalid. But if it is confident that Premise 3 is valid, that confidence might lead it to conclude that Premise 5 is valid. These are important considerations that a party advocating one construction or the other should take into account in structuring its argument. Continue Reading »
