As prior discussion suggests, a mechanism for avoiding the preemptive effect of the FAA on state insurance law is found in the McCarran-Ferguson Act, which provides for reverse preemption of federal law by state insurance law in the following manner:

Arbitration in the United States, in some shape or form, has been around since the early 20th century.[1] Incorporating both statutory law and common law, arbitration in the early 1900s was described by one individual as “robust and active,” with most states having adopted arbitration statutes by this period.

This paper discusses the McCarran-Ferguson Act generally, the Federal Arbitration Act (“FAA”) generally, and the reverse preemption of the FAA via the McCarran-Ferguson Act specifically.

In addition to a lack of clarity regarding the avenues through which class arbitration may survive, debate surrounding class arbitration will likely continue, which will fuel uncertainty about class arbitration’s future.