Note, Rethinking Prima Paint Separability in Today’s Changed Arbitration Regime: The Case for Inseparability and Judicial Decisionmaking in the Context of Mental Incapacity Defenses
By Zeb-Michael Curtin, February 8, 2012
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This Note discusses whether the doctrine of separability applies where a consumer asserts a mental incapacity formation-based defense in response to a motion to compel arbitration. The author compares the Supreme Court’s decision in favor of separability to two recent circuit court opinions that seem to distinguish this prior ruling. The author argues that courts should look to other considerations like the nature of a parties’ defense, policies under the Federal Arbitration Act, and the parties’ expectations of the legal process, rather than relying on the Supreme Court ruling.
