This Article discusses the shortcomings inherent in the consideration and enactment of the arbitrability provisions of the ADA and the 1991 Civil Rights Act. As a threshold matter, Part II demonstrates that the latter Act's textual encouragement of arbitration indicates that Congress misapprehended the effect of Gilmer, which the Supreme Court had decided barely six months before the Act's passage. Specifically, this Part will argue that after Gilmer, textual encouragement of arbitration has little or no greater legal significance than textual silence would have. In the few decades before the decision, textual encouragement would have had significant impact because particular congressional statutes usually did not explicitly address the FAA mandate's effect on claims under the statute. Faced with congressional silence, courts frequently held claims under various statutes inarbitrable due to the importance of the statute's underlying policy goals, the adequacy of arbitral procedure, or the relative bargaining positions parties often occupy when they execute arbitration agreements covering claims under the statute. By disabling courts from weighing any of these three grounds in determining the FAA mandate's effect, Gilmer effectively establishes the arbitrability of claims under congressional statutes which are silent concerning that effect.
Douglas E. Abrams, Arbitrability in Recent Federal Civil Rights Legislation: The Need for Amendment, 26 Conn. L. Rev. 521 (1994)