Reducing the Presumption of Arbitrability

Morrison v. Circuit City Stores, Inc., 317 F.3d 646 (6th Cir. 2003) (en banc). Bradford v. Rockwell Semiconductor Systems, Inc., 238 F.3d 549 (4th Cir. 2001).

The United States Supreme Court has expressed a "liberal federal policy favoring arbitration." However, under Gilmer v. Interstate/Johnson Lane Corp., arbitration agreements are only enforceable if "the prospective litigant effectively may vindicate [his or her] statutory cause of action in the arbitral forum." In Green Tree Financial Corp.-Alabama v. Randolph, the Supreme Court, applying Gilmer, held that plaintiffs could avoid arbitration by showing the "likelihood" of incurring prohibitive costs.