36:
582:
validity of the contract need not even be lawyers, and in all probability will be nonlawyers, wholly unqualified to decide legal issues, and even if qualified to apply the law, not bound to do so. I am by no means sure that thus forcing a person to forgo his opportunity to try his legal issues in the courts where, unlike the situation in arbitration, he may have a jury trial and right to appeal, is not a denial of due process of law. I am satisfied, however, that
Congress did not impose any such procedures in the Arbitration Act.
786:'s adoption of the separability doctrine "a perhaps unparalleled display of judicial sophistry". He fears it can have negative consequences for society as a whole: "By denying citizens the right to a day in court, arbitration imposed through mandatory processes and separability fosters cynicism and distrust in the rule of law, undermining its legitimacy."
631:"If Prima's allegations are true," Black concluded,"the sum total of what the Court does here is to force Prima to arbitrate a contract which is void and unenforceable before arbitrators who are given the power to make final legal determinations of their own jurisdiction, not even subject to effective review by the highest court in the land."
670:
principle of deference to state common law. Defenders of the decision have responded that it simply began bringing the U.S. more in line with international arbitration practice, helping
American companies compete in a global economy. One, Alan Rau, has also argued that it is justified not just by the
707:
That increased the use of such clauses, as well as legal challenges to them. In the 1990s and 2000s (decade), the Court has compelled arbitration even when the time frame to raise a claim is alleged to have lapsed, the contract has been alleged to be illegal under state law or where state law vested
801:
and the separability doctrine. He notes that challenges to the arbitration clause are often inseparable from the underlying claim, and that some public policy objectives may be better served by allowing the case to be heard by an arbitrator first. Conversely, he also notes that some challenges to a
586:
He noted that
Congress had explicitly not included in the FAA the language it normally used to apply to all commerce, leading him to doubt that the arbitration clause in the consulting agreement was covered by it. Nor did the Act provide as clear an answer as the majority claimed as to what sort of
581:
The Court holds, what is to me fantastic, that the legal issue of a contract's voidness because of fraud is to be decided by persons designated to arbitrate factual controversies arising out of a valid contract between the parties. And the arbitrators who the Court holds are to adjudicate the legal
789:
Defenders of the decision and separability have said that it is necessary for arbitration clauses to have any force, otherwise parties would be able to avoid them too easily by filing suits on any number of grounds. Those whose practice involves arbitrating disputes that are international in scope
744:
attracted little analysis and commentary in its time, but as it became the foundation for the Court's expansion of the scope of the
Arbitration Act and its subsequent application to contracts between consumers and businesses as well as among businesses, its reasoning has been the subject of more
541:
The language of
Section 4 of the Act was clear, he continued, that only explicit challenges to the arbitration clause or its inducement were to be properly put before a court in the first instance. "t is inconceivable that Congress intended the rule to differ depending upon which party to the
624:'s state Arbitration Act, on which the federal law was based, explicitly provided that a claim of misrepresentation in a contract with an arbitration clause was to be heard by a judge. "Thus, 35 years after the passage of the Arbitration Act, the Second Circuit completely rewrote it", in
599:. "The Court approves", he protested, "a rule which is not only contrary to state law, but contrary to the intention of the parties and to accepted principles of contract law — a rule which indeed elevates arbitration provisions above all other contractual provisions"
836:
443:
and noting that Prima had enjoyed the benefits of the contract for almost a year without complaint. It could not have been unaware of the bankruptcy proceedings, Flood noted, since it had been present at one of the creditors' committee meetings.
1307:
317:
In subsequent cases concerning the FAA, the Court has reaffirmed the separability principle and held that the FAA and this reading of it apply to arbitrable contracts under state law, even in cases where the contract is alleged to be
564:
cases. Rather, the question is whether
Congress may prescribe how federal courts are to conduct themselves with respect to subject matter over which Congress plainly has power to legislate. The answer to that can only be in the
665:
between companies and consumers, some consumer advocates and legal scholars have criticized the decision as the inadvertent opening wedge of an assault on the right to litigate, and a weakening of state contract law and the
843:
534:. Since the consulting agreement was inexorably tied to the transfer of business assets from Flood to Prima, it was covered. "There could not be a clearer case of a contract evidencing a transaction in
1322:
365:, which held that the requirement to arbitrate meant that any challenge to the contract itself had to go before an arbitrator, not just disputes over possible breaches of contract. Only the
733:
that upheld a district-court decision reversing an arbitration award where it was not clear that the respondents had agreed to submit the arbitrability of the question to the arbitrator.
400:
services for Prima and that it would not sell to any of its former customers while the agreement remained in force. Two contracts governed the transaction; both had arbitration clauses.
763:
says the Court "muddied the clear language of " and "enabled results contrary to the intentions of the framers of the FAA" by embracing the separability doctrine. Richard Barnes of the
283:(FAA) to require that any challenges to the enforceability of such a contract first be heard by an arbitrator, not a court, unless the claim is that the clause itself is unenforceable.
416:
102:
1277:"Rethinking Prima Paint separability in today's changed arbitration regime: the case for inseparability and judicial decisionmaking in the context of mental incapacity defenses"
1452:
514:
354:(FAA), providing rules and a legal framework for arbitration. Among its provisions was a requirement that parties who had agreed to arbitrate do so before going to court.
518:, an early reading of the Arbitration Act, which declined to compel arbitration in an employment contract on the grounds that the FAA applied only to contracts involving
790:
have credited it with bringing U.S. arbitration law closer to
European norms, helping American companies compete and making the U.S. a viable venue for arbitration.
314:
intent in passing the law. He feared it would put legal matters in the hands of arbitrators with little or no legal understanding of it nor duty to follow the law.
268:
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doctrine. "The FAA has become a substantive rule of a federal common law applied in virtually all settings and levels of the state and federal systems", he says.
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or execution of the contract might necessarily be first heard by a court. And lastly the majority had not provided sufficient justification for its reading of
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620:'s lobbyists, who had helped draft and pass it, suggesting that it was not meant to be interpreted as the majority and the Second Circuit had. He noted that
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was the lone dissenter from these two opinions, believing as
Rehnquist and O'Connor did that the FAA does not apply to contracts executed under state law.
452:
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is created that the clause itself constitutes a contract separate from the underlying, or "container", contract. This is similar to the principle of
298:
itself in a transaction and thus the contract between the two was unenforceable, precluding the arbitration agreed upon in the event of a dispute.
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in international arbitration, under which the arbitrator or arbitrators are presumed competent to decide the limits of their own jurisdiction.
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contract's formation necessarily include a challenge to the arbitration clause in any event, contrary to some recent lower-court decisions.
1442:
1342:"When arbitration subverts democracy: by blocking access to the courts, mandatory arbitration and separability undermine the rule of law"
560:
The question in this case, however, is not whether
Congress may fashion federal substantive rules to govern questions arising in simple
415:. F & C responded with a notice of intent to arbitrate. Near the end of its permitted response period, Prima instead petitioned the
1437:
574:
Black's four-part dissent was longer than the majority opinion he responded to. He took issue with every aspect of Fortas's reasoning.
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had reached a different conclusion in a similar case in 1960 that the
Supreme Court had declined to hear, the Court accepted Prima's
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legal papers. Critics have reiterated Black's concerns in focusing on how the later decisions have exposed fundamental flaws in
302:
wrote for a 6-3 majority that the FAA was broad enough to require arbitration of all issues save the arbitration clause itself.
451:, rebuffed Prima and ordered the parties to arbitration. An appeal to the Second Circuit was likewise unsuccessful. Since the
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established in federal jurisprudence what became known as the "separability" or "severability" principle in contracts with
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40:
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723:, rather than the validity of a formed contract, the Court has been willing to let a court decide the issue. Justice
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during the negotiations only to go bankrupt shortly after signing the deal, Prima argued, the contracts had been
404:
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In the early 20th century, businessmen in New York began promoting the idea of legally binding arbitration to
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but held that the law applied to arbitration clauses in contracts executed under state law as well. Justices
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407:. In 1965, shortly before the first of its annual payments was due, Prima paid its first installment into an
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in annual payments of up to $ 225,000 over a six-year period. In return, Flood & Conklin agreed that its
602:
His second and third sections went into great detail about the legislative history of the FAA, quoting from
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the contracts and enjoin Flood & Conklin from arbitration. Since that company had represented itself as
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538:", he wrote, responding to the dissent's suggestion that the language should be more narrowly interpreted.
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or state law provides for administrative dispute resolution. This has been seen as expanding the use of
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in contracts in the later 20th century, not only those between businesses but between businesses and
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arbitration agreement first invokes the assistance of a federal court." Finally, he addressed the
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in later cases. Since some of these have applied to the expanded use of arbitration clauses in
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The Court would not consider a case involving the FAA for another 17 years. When it did, in
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Challenge to enforceability of contract must be decided by arbitrator when contract has
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837:"Separability Saved: US Supreme Court Eliminates Threat to International Arbitration"
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543:
319:
1330:; 2 Brook. J. Corp. Fin. & Com. L. 1, at 39, 2007; retrieved September 26, 2008.
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dissented, as they would in subsequent cases where the court upheld that decision.
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When it comes to contracts where one party disputed whether it had been properly
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and must defer to the prevailing state interpretations in substantive matters.
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unless challenge is to clause itself. Second Circuit Court of Appeals affirmed.
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After reiterating the case history, Fortas considered the case in light of
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manufacturer, to purchase the latter's paint business for a percentage of
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749:, while defenders have found them to reinforce its fundamental soundness.
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Flood & Conklin responded by denying the fraud allegations in several
279:. Following an appellate court ruling a decade earlier, it reads the 1925
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was chosen since the contract stipulated arbitration would take place in
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One week after the contracts were executed, Flood & Conklin declared
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was also applicable precedent. Black was joined in a lengthy dissent by
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Starting in the mid-1980s, the Court has greatly expanded the reach of
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and told Flood's attorneys that it considered the consulting agreement
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and thus the arbitration clauses by extension could not be enforced.
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called the majority's interpretation overbroad and at odds with
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law school, a longtime critic of mandatory arbitration, calls
552:, which held that the federal courts cannot create a federal
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Defendant's motion for stay to compel arbitration granted in
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The FAA made no impact on the federal courts until the 1958
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and its progeny have created fundamental problems with the
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Arbitration Act but by general principles of contract law.
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Prima Paint Corp. v. Flood & Conklin Manufacturing Co.
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has gone to a greater extent than Fortas did in grounding
59:
Prima Paint Corp. v. Flood & Conklin Manufacturing Co.
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added a one-sentence concurrence saying that he believed
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decision that established what has become known as the "
1453:
United States Supreme Court cases of the Warren Court
812:
List of United States Supreme Court cases, volume 388
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862:
834:McDougall, Andrew de Lotbiniére and Ioannou, Leon;
512:, who had written for an eight-justice majority in
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767:has argued that, contrary to Fortas's assertions,
1373:; October 24, 2006; retrieved September 27, 2008.
1189:
907:Prima Paint Corp. v. Flood & Conklin Mfg. Co.
381:reached an agreement with Flood & Conklin, a
346:. Courts were hostile to the idea, especially in
260:Prima Paint Corp. v. Flood & Conklin Mfg. Co.
1429:
1333:
1371:Separability in the United States Supreme Court
870:Robert Lawrence Co. v. Devonshire Fabrics, Inc.
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628:, whose reasoning the Court was now accepting.
363:Robert Lawrence Co. v. Devonshire Fabrics, Inc.
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941:
692:wrote for a 7-2 majority that not only upheld
377:Under this framework, in 1964 Prima Paint, of
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1033:
577:In his introductory paragraph, he was blunt:
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1009:
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674:
369:itself could be challenged in court first.
16:1967 U.S. Supreme Court case on arbitration
970:, 388 U.S. at 406, Harlan, J., concurring.
859:; March 2006; retrieved September 4, 2008.
1077:, 388 U.S. at 407, Black, J., dissenting.
1056:
1021:
857:Mealey's International Arbitration Report
793:In several papers, Alan Scott Rau of the
396:, Jerome Jelin, would personally provide
333:
1363:
1312:Pushed Compulsory Arbitration Under The
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1080:
996:
973:
884:
461:petition in order to resolve the issue.
1172:Buckeye Check Cashing, Inc. v. Cardegna
1068:
948:Lummus Co. v. Commonwealth Oil Ref. Co.
931:Lummus Co. v. Commonwealth Oil Ref. Co.
468:for the parties on March 12, 1967. The
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1339:
961:
923:
900:
434:
21:1967 United States Supreme Court case
1340:Reuben, Richard (January 6, 2006).
1253:. December 22, 2007. Archived from
546:of the Court's holding in light of
13:
1443:United States arbitration case law
372:
41:Supreme Court of the United States
14:
1464:
1438:United States Supreme Court cases
1397:395 (1967) is available from:
1379:
938:, 923-24 (1st Cir. 1960).
481:in favor of Flood & Conklin.
464:Robert Herzog and Martin Coleman
286:The case arose from a claim by a
229:Black, joined by Douglas, Stewart
1350:American Association for Justice
470:American Arbitration Association
342:as a less costly alternative to
34:
727:wrote for a unanimous court in
1448:1967 in United States case law
1148:Howsam v. Dean Witter Reynolds
795:University of Texas law school
612:'s statements about it during
1:
1040:Erie Railroad Co. v. Tompkins
822:
712:authority in a state agency.
549:Erie Railroad Co. v. Tompkins
417:Southern District of New York
980:Bernhardt v. Polygraphic Co.
263:, 388 U.S. 395 (1967), is a
29:Flood & Conklin Mfg. Co.
7:
805:
525:
515:Bernhardt v. Polygraphic Co
484:
447:The district court, citing
265:United States Supreme Court
10:
1469:
1420:Oyez (oral argument audio)
1124:Southland Corp. v. Keating
755:Zeb-Michael Curtin of the
682:Southland Corp. v. Keating
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492:wrote for the six-justice
765:University of Mississippi
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737:Commentary and criticism
675:Subsequent jurisprudence
618:American Bar Association
105:; affirmed on appeal by
1222:First Options v. Kaplan
730:First Options v. Kaplan
498:John Marshall Harlan II
352:Federal Arbitration Act
281:Federal Arbitration Act
240:Federal Arbitration Act
1101:, 388 U.S. at 412-424.
584:
567:
334:Background of the case
269:separability principle
177:William J. Brennan Jr.
663:contracts of adhesion
652:compétence compétence
579:
558:
50:Decided June 12, 1967
48:Argued March 16, 1967
1247:"Zeb-Michael Curtin"
936:280 F.2d 915
875:271 F.2d 402
761:Dorsey & Whitney
429:fraudulently induced
290:manufacturer that a
27:Prima Paint Corp. v.
1411:Library of Congress
1328:on January 6, 2014.
1018:, 388 U.S. 401 n.7.
817:Kompetenz-kompetenz
644:arbitration clauses
536:interstate commerce
348:interstate commerce
277:arbitration clauses
83:87 S. Ct. 1801; 18
1285:University of Iowa
1113:, 388 U.S. at 425.
1089:, 388 U.S. at 411.
1065:, 388 U.S. at 405.
1030:, 388 U.S. at 404.
1006:, 388 U.S. at 401.
778:Richard Reuben of
710:dispute resolution
587:challenges to the
510:William O. Douglas
435:Litigation history
367:arbitration clause
161:William O. Douglas
149:Associate Justices
127:arbitration clause
1369:Rau, Alan Scott;
1197:Preston v. Ferrer
849:on July 20, 2011.
616:and those of the
544:constitutionality
256:
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173:John M. Harlan II
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1310:Prima Paint
1251:findlaw.com
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1111:Prima Paint
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694:Prima Paint
659:Prima Paint
640:Prima Paint
324:arbitration
218:Concurrence
189:Byron White
145:Earl Warren
1432:Categories
1087:Prima Pain
823:References
554:common law
490:Abe Fortas
458:certiorari
441:affidavits
405:bankruptcy
398:consulting
383:New Jersey
344:litigation
304:Hugo Black
300:Abe Fortas
288:New Jersey
197:Abe Fortas
153:Hugo Black
112:certiorari
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593:Bernhardt
589:formation
562:diversity
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520:admiralty
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330:as well.
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273:contracts
85:L. Ed. 2d
65:Citations
1385:Text of
1002:Fortas,
918:395, 399
806:See also
780:Missouri
702:O'Connor
622:New York
614:hearings
526:Majority
494:majority
485:Decision
413:breached
390:receipts
379:Maryland
292:Maryland
248:§ 1
210:Majority
879:2d Cir.
685:, then-
607:Senator
604:Montana
570:Dissent
425:solvent
421:rescind
320:illegal
308:dissent
251:et seq.
226:Dissent
120:Holding
115:granted
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