Hiding Elephants in Mouseholes: Judicial (Mis)Application of the Federal Arbitration Act to Attorney-Client Arbitration Agreements

Authors

Gregory L. Smith

First Page

95

Last Page

108

Document Type

Article

Abstract

This article criticizes cases and commentary that assume, without argument, that the Federal Arbitration Act (FAA) and its decidedly pro-arbitration jurisprudence apply to determine the enforceability of private attorney-client arbitration agreements, thus preempting state bar rules governing disclosures that lawyers must otherwise provide to clients when proposing private, binding arbitration in place of bar-sponsored arbitration regimes. The author argues that applying the FAA and its jurisprudence to attorney-client arbitration agreements raises significant constitutional issues regarding the states’ recognized authority to regulate the legal profession—an issue that courts and commentators have simply ignored.

Recommended Citation

Gregory L. Smith, Hiding Elephants in Mouseholes: Judicial (Mis)Application of the Federal Arbitration Act to Attorney-Client Arbitration Agreements, 26 Pepp. Disp. Resol. L.J. 95 (2026)
Available at: https://digitalcommons.pepperdine.edu/drlj/vol26/iss1/3