Today we are pleased and honored to feature an article by our good friend John (Jay) McCauley, a distinguished arbitrator, mediator, attorney and professor of arbitration law. Jay’s article is entitled “A Commercial Arbitrator’s Take on Rent-A-Center v. Jackson,” and can be found here.
Jay debunks the media hype surrounding the United States Supreme Court’s recent decision in Rent-A-Center v. Jackson, ___ U.S. ___, slip op. (June 21, 2010), and argues (persuasively) that the case is a reasonable, natural and modest interpretation of the Court’s prior Federal Arbitration Act jurisprudence. With one minor caveat we agree wholeheartedly with his insightful and pragmatic view of the case.
Our view of the decision may differ very slightly in that we believe that its scope is broader than the holding might suggest. Jay is absolutely correct when he says that the decision permits parties to challenge delegation agreements (agreements to arbitrate arbitrability) on unconscionability grounds. He says that there may be “dozens” of grounds on which to make such a challenge, and we think he is right about that, too.
But we think that it will be very difficult to mount a successful challenge specifically directed at a delegation agreement. And if we are right about that, then the practical effect of the decision will be that delegation agreements will usually be enforced, enabling arbitrators to decide most unconscionability challenges. The scope of the decision is, in our view, therefore quite broad.
We nevertheless agree with Jay that the decision makes perfect sense in light of the Court’s prior Federal Arbitration Act jurisprudence, and apart from our caveat about the decision’s scope, we are otherwise on the same page as Jay. Of course, it may turn out that challenges to delegation agreements prove more successful than we think they will.
Jay is an American-Arbitration-Association certified arbitrator and mediator, and serves on the AAA’s Large Complex Case Panel. He is a Fellow of the College of Commercial Arbitrators and a Distinguished Fellow of the International Academy of Mediators. He offers arbitrator and mediator services through Judicate West and Professional Mediation Associates.
Jay also serves as an adjunct professor of arbitration law at Pepperdine Law School, the University of Missouri-Kansas City Law School and the Werner Institute of Creighton Law School. An AV-rated attorney, he is a member of the California bar and is admitted to practice before the United States Supreme Court. He is listed in “Best Lawyers in America” for ADR, and in “Southern California Super Lawyers,” also for ADR. You can visit his website here.
We hope you enjoy Jay’s article.
Tags: Arbitrability, Delegation Agreement, John (Jay) McCauley, Rent-A-Center v. Jackson, Unconscionability, United States Supreme Court
