Brian Farkas, an attorney at Goetz Fitzpatrick LLP, has published an article in the Harvard Negotiation Law Review entitled, “The Continuing Voice of Dissent: Justice Thomas and the Federal Arbitration Act.”
Justice Clarence Thomas is celebrating his 25th year on the U.S. Supreme Court, and this article examines his unique legacy on arbitration. Since 1984, a majority of the Supreme Court has held that the Federal Arbitration Act (“FAA”) preempts conflicting state arbitration laws, and that the FAA must be applied in state courts. Consequently, federal courts have invalidated many states’ attempts to regulate arbitration. This reality has shaped American arbitration law for over three decades. Justice Thomas has vigorously fought against this approach to arbitration policy since he joined the Supreme Court, becoming one of the most vocal and consistent opponents of the application of the FAA in state court proceedings. This article examines Justice Thomas’ views on both the FAA and arbitration more broadly. In an area of procedural law that evades facile labels of ‘liberal’ and ‘conservative,’ Justice Thomas shows the ways in which a conservative preference for states’ rights can actually lead to liberal procedural and substantive outcomes.
Farkas, a commercial litigator at the firm, is also active in the dispute resolution field, serving as a pro bono mediator in New York County and Kings County, and teaching mediation at Brooklyn Law School.
The full article is available here.