From Hostility to Harmony: Buckeye Marks a Milestone in the Acceptance of Arbitration in American Jurisprudence* – Vol. 16 No. 3-4

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Author: Kirsten Weisenberger**

Published: July 2007

United States
Enforceability of Arbitration Agreements

Description: The Supreme Court handed down a modest five-page decision in Buckeye Check Cashing v. Cardegna on February 21, 2006. It reaffirmed two doctrines: the separability rule, which requires the enforcement of an arbitration clause irrespective of the alleged invalidity of the agreement in which it is contained, and the Southland rule, which requires the application of the Federal Arbitration Act in both state and federal courts. The case represents much more than a simple restatement of the law, however. Buckeye marks the settlement of a heated controversy among scholars and jurists as to whether the Federal Arbitration Act should properly be applied to the states. Several of the amicus briefs in the case, two authored by law professors and one signed by the attorneys general of fortytwo states, entreated the Court to overrule Southland and restore to state courts freedom from the FAA on federalist grounds. In an era where some have heralded the return of a Supreme Court that strongly supports states’ rights – and the possibility of a “federalist revolution,” – Buckeye represents a battle the federalists have lost eight to one. This note analyzes what was at issue in Buckeye and argues that the Court’s holding was right because it promotes the pro-arbitration thrust of the FAA by ensuring the uniform enforcement of arbitration agreements. In the final section, this note describes the lower courts’ overwhelmingly positive reaction to the decision in the intervening months.

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*Arbitral and Judicial Decisions
**Anticipated J.D., Stanford Law School, 2007. The author would like to thank Janet Whittaker for her encouragement and invaluable critical review, Patrick W. Pearsall for insightful comments, and David Marcus for his mentorship.