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132 Yale L.J. F. 1 (2022-2023)

handle is hein.journals/yljfor132 and id is 1 raw text is: THE YALE LAW JOURNAL FORUM JUNE 23, 2022 The Limits of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act David Horton ABSTRACT. In March 2022, President Biden signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (Ending Forced Arbitration Act). The Act voids predispute arbitration clauses in cases involving sexual-misconduct allegations. The legislation-which earned bipartisan support - was a stunning victory for the #MeToo movement and critics of forced arbitration. However, this Essay explores a design choice that limits the impact of the new law. Previously, Congress had restricted forced arbitration through standalone statutes that applied to all arbitra- tion provisions within the scope of its legislative power. Conversely, federal lawmakers inserted the Ending Forced Arbitration Act within the Federal Arbitration Act (FAA). Thus, the Ending Forced Arbitration Act only governs if the FAA governs. But the FAA is subject to several excep- tions. In turn, when a case falls through the cracks of federal arbitration law, state law applies. States generally have a reputation for being hostile to arbitration. But this Essay demonstrates that, counterintuitively, many states require arbitration where federal law now does not. Accordingly, the Essay outlines what Congress, state lawmakers, and courts can do to prevent allegations of sexual misconduct from being sent to private dispute resolution. INTRODUCTION On March 3, 2022, President Biden signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (Ending Forced Arbitration Act).1 The Act is the first major amendment in the one-hundred-year history of the 1. See Phil Mattingly & Maegan Vazquez, Biden Signs Bill Overhauling Workplace Sexual Miscon- duct into Law, CNN (Mar. 3, 2022, 6:32 PM), https://www.cnn.com/2022/o3/o3/politics/ biden-sexual-misconduct-bill-signing/index.html [https://perma.cc/GK69-38KW].

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