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96 Va. L. Rev. Brief 1 (2010-2011)

handle is hein.journals/inbrf96 and id is 1 raw text is: VIRGINIA LAW REVIEW IN BRIEF VOLUME 96 APRIL2,2010 PAGES 1-8 ESSAY THE MANDATORY CORE OF SECTION 4 OF THE FEDERAL ARBITRATION ACT David Horton* INTRODUCTION IN April 2010, the U.S. Supreme Court will hear oral arguments in Rent-a-Center v. Jackson,' a case that has profound implications for the future of American dispute resolution. The issue before the Court is not the merits of Antonio Jackson's civil rights lawsuit against his for- mer employer, nor even the validity of the mandatory arbitration con- tract that he was required to sign before he could begin work. Instead, the Court must decide whether Jackson-and the hundreds of millions of other employees, consumers, and franchisees who are subject to manda- tory arbitration clauses-have a non-waivable right to challenge the fairness of such provisions in federal court. Because the Federal Arbitra- tion Act (FAA)2 allows courts to nullify one-sided arbitration clauses under the unconscionability doctrine, the judiciary has traditionally served as a bulwark against harsh dispute resolution terms.3 Yet the con- * Associate Professor, Loyola Law School (Los Angeles). Thanks to Corina Valderrama for outstanding research assistance. Rent-A-Center West, Inc. v. Jackson, 130 S. Ct. 1133 (Jan. 15. 2010), http://www.supremecourt.gov/Search.aspx?FileName=/docketfi les/09-497.htm. 2 Federal Arbitration Act. 9 U.S.C. §§ 1 16 (2006). See, e.g., Aaron-Andrew P. Bruhl, The Unconscionability Game: Strategic Judging and the Evolution of Federal Arbitration Law, 83 N.Y.U. L. Rev. 1420, 1437-39 (2008) (survey- ing the kinds of terms in arbitration clauses that courts have invalidated under the uncons- cionability doctrine).

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