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62 Infrastructure 1 (2022-2023)

handle is hein.journals/infrastr62 and id is 1 raw text is: structure Vol. 62, No. 1, Fall 2022 Supreme Court Decisions Favor Arbitration Over Class Action By John Jay Range The Supreme Court holds oral argument in 70-80 cases per year. This year, the Court granted oral argument in six arbitration cases. One of the reasons for the Court's disproportionately large focus on the Federal Arbitration Act (FAA)' is that arbitration is at the center of an ongoing battle between businesses and class action lawyers. The Supreme Court's decisions in the last decade significantly limited the use of class actions by permit- ting businesses to require consumers and employees to waive their right to pursue class actions in favor of arbitration. The Court achieved this result primarily by broadening the scope of the FAA's preemption of state law, which in some instances prohibits waivers of class actions or limits the use of forced arbitration clauses in adhesion contracts where a consumer or employee lacks equal bargaining power with a large corporation. Congress has largely acquiesced to the use of so-called forced arbitra- tion agreements, where businesses require consumers and employees to consent to pre-dispute waiver of any right to bring a class action law- suit in favor of individual arbitration. Range John.jay Range, 1range@HunonAK.corn, is a partner in the Washington, D.C., office of Hunton Andrews Kurth LLP He is the chair of the ABA Section ofInfrastructure and the Regulated Industries Alternative Dispute Resolution Committee. He is also a member ofthe Advisory Committeefor the ABA Section of Dispute Resolution. His practice focuses on international investor-state and commercial arbitration. Image ©YacobchukOlena via Getty Images One exception to the enforceability of forced arbitration clauses, though, involves contracts that fall within the scope of FAA @ 1. Section 1 excludes FAA arbitration of contracts of employment of seamen, railroad employ- ees, or any other class of workers engaged in foreign or interstate commerce.j However, the Supreme Court has interpreted the italicized language narrowly such that only employment contracts of transportation workers engaged in foreign or interstate commerce are excluded from the FAA.' Three of the six arbitration cases the Supreme Court decided this year relate to the validity or enforceability continued on page 3