By Seth McDowell
For decades, the Supreme Court has favored arbitration agreements in employment and struck down state attempts to limit their use. In so doing, the Court has often cited the Federal Arbitration Act’s (FAA) supposed “liberal federal policy favoring arbitration.” In its 2021–2022 term, the Court broke with prior precedent, signaling that future arbitration decisions will be rooted in the text of, rather than the policy behind, the FAA. This shift leaves room for states to pass statutes which prohibit employers from requiring employees to sign arbitration agreements. One such statute, California’s A.B. 51, was only narrowly struck down as preempted by the Ninth Circuit in Chamber of Commerce v. Bonta, which was decided prior to the Supreme Court’s textualist shift on the FAA. On a strict textualist reading, the FAA only regulates contracts already in existence and says nothing about behavior leading up to the formation of a contract. Thus, statutes like A.B. 51 are now likely to survive preemption due to the Court’s newly textualist position on the FAA. This Note argues that states seeking to limit the use of arbitration agreements in employment should pass statutes like A.B. 51 and can expect that such laws will not be preempted.