Adjunct Professor George Friedman wrote a blog post assessing the arbitration predictions he made in 2017.
Some Big and Bold Predictions
Here were my arbitration predictions from a year ago on what was coming in 2017, and how they turned out. How did I do? As Larry David says, “Pretty, pretty, pretty, pretty good.” Core arbitration predictions are in bold/italic:
- We Will Have a President Who Likes and Uses Arbitration!
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What happened: Spot on prediction! I cover separately the Consumer Financial Protection Bureau (“CFPB”) and other regulators, but let’s start with that Obama-era Title VII Regulation referenced above. What happened? Gone! Exercising its authority under the Congressional Review Act (“CRA”), 5 USC §§ 801-808, the House of Representatives in February passed House Joint Resolution 37, invalidating the Fair Pay & Safe Workplaces rule issued in August 2016. It was then passed by the Senate and signed by President Trump on March 27th, along with several other nullifications. The rule is now rescinded and a like regulation in “substantially the same form” cannot be promulgated thereafter unless specifically authorized by Congress.
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- All the Anti-Arbitration Legislation is DOA
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What Happened? As predicted, all these bills went nowhere and died when the last Congress adjourned. As also predicted, the Democrats have introduced several anti-arbitration bills in the new Congress, as described in my blog post, Baseball Season is Here! You Can’t Tell the Anti-Arbitration Bills Without a Scorecard. They have predictably gone nowhere. However, in the wake of seemingly daily accusations of workplace sexual harassment, bipartisan bills were introduced December 6th in both Houses of Congress that would amend the Federal Arbitration Act to ban predispute arbitration agreements covering sexual discrimination disputes.
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- SCOTUS’ Support for Arbitration Will Continue Unabated
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President Trump nominated, and the Senate confirmed, the pro-arbitration Justice Neil Gorsuch;[4] 2) SCOTUS granted certiorari in Lewis; and 3) in May the Supreme Court held 7 – 1 in Kindred that a Kentucky rule of law requiring that a power of attorney specifically authorize nursing home agreements to arbitrate was preempted by the Federal Arbitration Act. The first real test of Justice Gorsuch’s arbitration views will be in Epic Systems, discussed above, which was argued after he joined the Court.
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- Expect Dodd-Frank to be Repealed and Replaced
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This prediction gets an “incomplete.” On June 8th the House of Representatives by a 233–186 strictly party-line vote approved the reintroduced Financial CHOICE Act. Not a single Democrat voted “Yea” and only one Republican – Rep. Walter Jones (NC) – voted “Nay.”
