Neil M. Gorsuch, the Tenth U.S. Circuit Court of Appeals judge that President Trump has nominated to serve on the U.S. Supreme Court, has expressed, in opinions, some indications as to how he looks at arbitration. Russ Bleemer, editor of Alternatives to the High Cost of Litigation, has researched Gorsuch’s opinions. Excerpts from his early February, 2017, memo to CPR staff follow:
Arbitration: From Gorsuch’s own words:
“Everyone knows the Federal Arbitration Act favors arbitration,” (Howard v. Ferrellgas Partners) but, he emphasized, “before the Act’s heavy hand in favor or arbitration swings into play, the parties themselves must agree to have their disputes arbitrated….While Congress has chosen to preempt state laws that aim to channel disputes into litigation rather than arbitration, even under the FAA it remains a ‘fundamental principle’ that ‘arbitration is a matter of contract,’ not something to be foisted on the parties at all costs.”
If confirmed quickly, Gorsuch could find himself participating in the decisions on three cases taken by the Court on January 13, 2017, that will be argued together this term and will settle whether employees can be required as a condition of employment to arbitrate their workplace disputes individually, while waiving their rights to a class process.
See postings on CNCR Facebook page regarding background on these cases and the issues in contention and the column in Alternatives on mandatory arbitration co-authored by Stamato and Jaffe.