Opponents of FAA Preemption Will Fear Gorsuch's Approach

With Neil Gorsuch having been confirmed and sworn in as the nation’s newest associate justice of the U.S. Supreme Court, lawyers with cases before the court will now be scouring his opinions as a judge on the U.S. Court of Appeals for the 10th Circuit Court for indications as to how he might be persuaded to rule in their favor. To some extent, that search is a fool’s errand; after all, a circuit judge must follow the precedent of the Supreme Court cases that might be relevant, whereas a justice sitting on the Supreme Court has the ability to alter the law by voting to overrule or distinguish its own precedent. Justices thus exercise considerably more freedom than they might have had when sitting as circuit judges. Nevertheless we suggest New Jersey lawyers might be interested in one arbitration case in the 10th Circuit from less than a year ago: Ragab v. Howard, 841 F.3d 1134 (10th Cir. 2016), in which Gorsuch dissented.

Ragab held that the district court properly denied a motion to compel arbitration between two merchants in a business relationship. The multiple documents concerning the relationship contained multiple arbitration clauses, each with different terms. Relying in part on the New Jersey Appellate Division’s 2011 decision in NAACP of Camden Cty. E. v. Foulke Mgt. Corp., 421 N.J. Super. 404 (App. Div. 2011), the 10th Circuit majority found that the conflicts meant the parties had not reached agreement on the “essential terms” of how to conduct the arbitration.