Reverse Pre-Empting the Federal Arbitration Act: Alleviating the Arbitration Crisis in Nursing Homes
Abstract
In Casarotto, the Supreme Court enunciated that Montana's notice requirement conflicted with the "goals and policies of the FAA." The inequities associated with the process of pre-dispute arbitration agreements in nursing homes, however, confirm that the FAA's "goals and policies"' conflict with "accepted principles of contract law"' in this context. Long standing principles of contract law that predate the FAA, as well as basic human morality, should supersede the interests of efficiency and convenience purportedly served by the general enforceability of the statute. State case law as well as attempted state legislation already evince an underlying public policy to protect nursing home residents from the harsh effects of unconscionable arbitration agreements. Despite court decisions declaring certain practices unconscionable, however, nursing homes continue to employ these procedures. It is therefore Congress' obligation to recognize this impropriety and grant relief possibly in the form of legislation similar to the McCarran Act that would essentially consent to state regulation of nursing home admission agreements. Moreover, legislative relief would serve policy interests by providing an efficient, inexpensive, and fair forum for dispute resolution; pursue the goals of states by protecting residents; and open the door of redress that had previously been closed or impossible to reach for many nursing home residents. This legislation is vital to nursing home residents because whatever Congress meant when it sought to make arbitration agreements as enforceable as other contracts; and whatever the Supreme Court meant when it interpreted the FAA to apply to consumer disputes in federal and state court, surely it did not mean this.
Recommended Citation
Note, Reverse Pre-Empting the Federal Arbitration Act: Alleviating the Arbitration Crisis in Nursing Homes, 22 J.L. & Health 375 (2009)