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    Federal Arbitration Act Preemption

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    Full-text available at SSRN. See link in this record. (18.68Kb)
    Issue Date
    2004
    Author
    Drahozal, Christopher R.
    Publisher
    Indiana University Maurer School of Law
    Type
    Article
    Version
    http://ssrn.com/abstract=1882605
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    Abstract
    Taking as given the existing Supreme Court case law, this Article seeks to develop an overall framework for analyzing when the Federal Arbitration Act preempts state law. The framework is not conclusive but instead highlights areas of uncertainty for future legal development. Some fundamental principles of FAA preemption are resolved: State laws that single out arbitration are preempted when they invalidate arbitration agreements; general contract law defenses, even when applied to invalidate arbitration agreements, ordinarily are not preempted; and parties can incorporate by reference state arbitration laws into their contracts and avoid FAA preemption. As the analytical framework developed here illustrates, however, a number of issues remain unsettled. The lower courts are divided on whether the FAA preempts state laws that apply to arbitration agreements and to some other contract clauses, but not to contracts generally. Questions remain to be answered as to when general contract law defenses, while ordinarily saved from preemption, may nonetheless single out arbitration agreements and be preempted after all. Finally, the Supreme Court still has to decide how to deal with “second generation” FAA preemption cases - cases involving state laws that regulate the arbitration process rather than invalidating the parties’ arbitration agreement. The Article identifies and categorizes five alternative theories of FAA preemption and examines how selected second generation preemption cases likely would be decided under each of those theories.
    Description
    Full-text available at SSRN. See link in this record.
    URI
    http://hdl.handle.net/1808/11312
    Collections
    • Law School Scholarly Works [621]
    • Distinguished Professors Scholarly Works [918]
    Citation
    Christopher R. Drahozal, Federal Arbitration Act Preemption, 79 IND. L.J. 393 (2004).

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    Contact KU ScholarWorks
    785-864-8983
    KU Libraries
    1425 Jayhawk Blvd
    Lawrence, KS 66045
    785-864-8983

    KU Libraries
    1425 Jayhawk Blvd
    Lawrence, KS 66045
    Image Credits
     

     

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