The Mandatory Core of Section 4 of the Federal Arbitration Act

In Rent-a-Center v. Jackson, the U.S. Supreme Court will determine whether businesses can require their employees, consumers, and franchisees to arbitrate the issue of whether the arbitration clause itself is unconscionable. The conventional wisdom, based on dicta in several Supreme Court decisions, is that parties can arbitrate the validity of the arbitration clause as long as there is clear and unmistakable evidence of their intent to do so. Conversely, this short Essay argues that courts, not arbitrators, have the exclusive power to determine whether an arbitration clause is invalid under traditional contract defenses. The source of the judiciary’s monopoly is section 4 of the Federal Arbitration Act, which mandates that any time the “making of the agreement to arbitrate” is “in issue,” a judge must resolve the matter.