Originally from Alternatives to the High Cost of Litigation

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The U.S. Supreme Court’s sole 2016-2017 term ADR opinion re-asserted the Court’s pro-arbitration stance and added to the line of modern decisions led by AT&T Mobility LLC v. Concepcion, 563 U. S. 333 (2011)(available at http://bit.ly/1Sf42Bm). 

A 7-1 May ruling written by Justice Elena Kagan held that the Federal Arbitration Act both “preempts any state rule discriminating on its face against arbitration” and “displaces any rule that covertly accomplishes the same objective by disfavoring contracts that (oh so coincidentally) have the defining features of arbitration agreements.” Kindred Nursing Centers v. Clark, No. 16-32 (May 15)(available at http://bit.ly/2pCk94L ).

Though the decision involved an interpretation of a power-of-attorney document under the Kentucky constitution, Kindred differs from recent Supreme Court arbitration cases because of the emotions surrounding a case that originally involved death in the nursing home industry. It arose in the already-charged consumer arbitration setting.