The Supreme Court’s 2022 Badgerow v. Waters decision at- tempts to create a bright-line rule regarding access to federal courts to hear arbitration matters. On its face, the Badgerow majority opinion reads like a straightforward exercise in textualism. Badgerow interpreted the judicial test for jurisdiction under the Federal Arbitration Act (“FAA”) provision regarding vacatur differently than it interpreted the jurisdictional test for a motion to compel under a different part of the statute. However, Badgerow leaves courts, which were already struggling to decipher the Supreme Court’s 2009 decision of Vaden v. Discover Bank, with a significant number of outstanding questions. Although these two cases can theoretically be read together, the two holdings leave open a host of practical difficulties that could lead to years of litigation on arbitration matters—matters that should otherwise be resolved simply and efficiently. This Article outlines the two decisions, how they are read together, and how they leave open inconsistencies. This Article then discusses the likely practical fallout from Badgerow, a proverbial “muddy mess.” The “muddy mess” has already be- gun to occur, based on early lower courts working with these two inconsistent precedents. This Article suggests legislative changes to create a consistent and predictable rule for motions dealing with arbitration practice.
Kristen M. Blankley,
A Muddy Mess: The Supreme Court’s Jurisprudence on Jurisdiction for Arbitration Matters,
77 U. MIA L. Rev.
Available at: https://repository.law.miami.edu/umlr/vol77/iss3/5