Volume 112

Survivors’ Justice

Nearly a decade ago, the #MeToo movement surfaced deep failings in our criminal and civil legal systems. But the work of retrofitting these systems to meet the needs of victims remains largely incomplete. To that end, survivors’ conceptions of justice are of profound importance for theorists and reformers alike. Centering survivors recasts the virtues of restorative justice processes while clarifying the critical functions ideally served by traditional legal systems. Rather than forsaking reliance on these systems, I argue for their institutional redesign. To anchor this shift, I identify three overarching principles: access, control, and support. I close by reflecting on the promise of justice reimagined.

Introduction

Trauma has become central to conventional understandings of sexual abuse and its aftermath.1 1.See Bessel A. van der Kolk, The Body Keeps the Score: Brain, Mind, and Body in the Healing of Trauma 1–2 (2014) (“Trauma, by definition, is unbearable and intolerable. Most rape victims, combat soldiers, and children who have been molested become so upset when they think about what they experienced that they try to push it out of their minds, trying to act as if nothing happened, and move on. It takes tremendous energy to keep functioning while carrying the memory of terror, and the shame of utter weakness and vulnerability.”).Show More But our justice systems, criminal and civil, remain mostly untouched by this paradigm shift. Much the same can be said of legal discourse surrounding abuse, which has yet to interrogate the idea of trauma, much less its structural features. When trauma does crop up in the legal context, the dominant conception is highly individualistic, deployed to explain—often in pathological terms—ostensibly unusual victim behaviors that deviate from expectations.2 2.See, e.g., Deborah Tuerkheimer, Victim, Reconstructed: Sex Crimes Experts and the New Rape Paradigm, 2024 U. Ill. L. Rev. 55, 68–82 [hereinafter Tuerkheimer, Victim, Reconstructed] (critiquing the construct of “rape trauma syndrome” and its evidentiary treatment).Show More

This defect is not isolated: across the board, the law abstracts sexual violence from social context.3 3.See id. at 78 (explaining that “[w]ith few exceptions, the criminalization of gender violence rests on the faulty premise that context does not matter”).Show More When it comes to trauma, this legal tendency is buttressed by a cultural attraction to neurobiological accounts of phenomena that might otherwise be dismissed.4 4.As noted by Bessel van der Kolk, author of the wildly popular The Body Keeps the Score, “In the culture right now, if it’s based on the brain, it’s real . . . . Everything else is woozy stuff.” Ellen Barry, She Redefined Trauma. Then Trauma Redefined Her., N.Y. Times (Apr. 25, 2023) (quoting Bessel van der Kolk), https://www.nytimes.com/2023/04/24/health/judith‌-herman-trauma.html; seeDanielle Carr, Tell Me Why It Hurts: How Bessel van der Kolk’s Once Controversial Theory of Trauma Became the Dominant Way We Make Sense of Our Lives, N.Y. Mag. (July 31, 2023), https://nymag.com/intelligencer/article/trauma-bessel-van-der-kolk-the-body-keeps-the-score-profile.html. Because sexual trauma is particularly unlikely to register as “real,” recognition of its neurobiological features has served an important function, enabling survivors to offer tangible evidence of their injury and its impact without needing to contest entrenched views of what counts as harm. See van der Kolk, supra note 1, at 21 (“Since the early 1990s brain-imaging tools have started to show us what actually happens inside the brains of traumatized people. . . . We have learned that trauma is not just an event that took place sometime in the past; it is also the imprint left by that experience on mind, brain, and body.”).Show More But an individualized, neuroscientific account of trauma is, at best, partial.5 5.See Judith Lewis Herman, Trauma and Recovery: The Aftermath of Violence—From Domestic Abuse to Political Terror33 (1997) (“Traumatic events overwhelm the ordinary systems of care that give people a sense of control, connection, and meaning.”); see also id. at 133 (“The core experiences of psychological trauma are disempowerment and disconnection from others. Recovery, therefore, is based upon the empowerment of the survivor and the creation of new connections.”).Show More Trauma cannot be identified by biological markers alone, nor can trauma be theorized without regard for the social hierarchies that shape its experience and its meaning.

Contextualizing sexual trauma, along with the sexual violation that precedes it, opens new ways of thinking about the meaning of justice. Because sexual violence has deep roots in a culture that has long enabled it, survivors need meaningful action on the part of the collective to remedy their violation. As psychiatrist Judith Herman writes, where “trauma originates in a fundamental injustice, then full healing must require repair through some measure of justice from the larger community.”6 6.Judith L. Herman, Truth and Repair: How Trauma Survivors Envision Justice 3 (2023). In other words, “[i]f trauma is truly a social problem, and indeed it is, then recovery cannot be simply a private, individual matter.” Id.; see also id. at 1 (arguing that “[b]ecause the violence at the source of trauma aims at domination and oppression,” recovery must involve the restoration of social power).Show More

Building on this insight, the remainder of this Essay proceeds in three parts. Part I draws on Herman’s groundbreaking work to explain how survivors envision justice and why justice matters for healing. Part II applies this framework to restorative justice processes, assessing both their virtues and shortcomings. Part III leverages the discussion of restorative justice in order to offer a novel set of principles for operationalizing survivors’ justice within existing legal systems.

  1.  See Bessel A. van der Kolk, The Body Keeps the Score: Brain, Mind, and Body in the Healing of Trauma 1–2 (2014) (“Trauma, by definition, is unbearable and intolerable. Most rape victims, combat soldiers, and children who have been molested become so upset when they think about what they experienced that they try to push it out of their minds, trying to act as if nothing happened, and move on. It takes tremendous energy to keep functioning while carrying the memory of terror, and the shame of utter weakness and vulnerability.”). ↑
  2.  See, e.g., Deborah Tuerkheimer, Victim, Reconstructed: Sex Crimes Experts and the New Rape Paradigm, 2024 U. Ill. L. Rev. 55, 68–82 [hereinafter Tuerkheimer, Victim, Reconstructed] (critiquing the construct of “rape trauma syndrome” and its evidentiary treatment). ↑
  3.  See id. at 78 (explaining that “[w]ith few exceptions, the criminalization of gender violence rests on the faulty premise that context does not matter”). ↑
  4.  As noted by Bessel van der Kolk, author of the wildly popular The Body Keeps the Score, “In the culture right now, if it’s based on the brain, it’s real . . . . Everything else is woozy stuff.” Ellen Barry, She Redefined Trauma. Then Trauma Redefined Her., N.Y. Times (Apr. 25, 2023) (quoting Bessel van der Kolk), https://www.nytimes.com/2023/04/24/health/judith‌-herman-trauma.html; see Danielle Carr, Tell Me Why It Hurts: How Bessel van der Kolk’s Once Controversial Theory of Trauma Became the Dominant Way We Make Sense of Our Lives, N.Y. Mag. (July 31, 2023), https://nymag.com/intelligencer/article/trauma-bessel-van-der-kolk-the-body-keeps-the-score-profile.html. Because sexual trauma is particularly unlikely to register as “real,” recognition of its neurobiological features has served an important function, enabling survivors to offer tangible evidence of their injury and its impact without needing to contest entrenched views of what counts as harm. See van der Kolk, supra note 1, at 21 (“Since the early 1990s brain-imaging tools have started to show us what actually happens inside the brains of traumatized people. . . . We have learned that trauma is not just an event that took place sometime in the past; it is also the imprint left by that experience on mind, brain, and body.”). ↑
  5.  See Judith Lewis Herman, Trauma and Recovery: The Aftermath of Violence—From Domestic Abuse to Political Terror 33 (1997) (“Traumatic events overwhelm the ordinary systems of care that give people a sense of control, connection, and meaning.”); see also id. at 133 (“The core experiences of psychological trauma are disempowerment and disconnection from others. Recovery, therefore, is based upon the empowerment of the survivor and the creation of new connections.”). ↑
  6.  Judith L. Herman, Truth and Repair: How Trauma Survivors Envision Justice 3 (2023). In other words, “[i]f trauma is truly a social problem, and indeed it is, then recovery cannot be simply a private, individual matter.” Id.; see also id. at 1 (arguing that “[b]ecause the violence at the source of trauma aims at domination and oppression,” recovery must involve the restoration of social power). ↑

Wonderland Sentencing: Therapeutic Perspectives on Pretrial Provisional Sentences

In Alice’s Adventures in Wonderland, the Knave of Hearts is accused of stealing tarts. The Queen of Hearts insists that they should “[s]entence [the Knave] first” and hear the verdict afterwards. Alice derides “[t]he idea of having the sentence first” because, of course, nothing would be more absurd. In this Essay, I defend that absurd idea, at least provisionally.

While we certainly should not punish someone prior to conviction, we should carefully consider the benefits of “wonderland sentencing,” in which those accused of crimes are given provisional sentences prior to the decision to proceed to trial. Doing so enables defendants to make better informed, fairer decisions about whether and under what circumstances to plead guilty. The proposal supports goals of therapeutic jurisprudence by (1) reducing prosecutorial leverage that many legal scholars consider both excessive and a cause of disproportional sentencing; (2) allowing defendants to be and feel heard by an impartial judge; and (3) providing defendants better information about their future sentencing liability, not only as it affects plea decisions, but also as it affects the very stressful period before their cases are resolved.

We give defendants very limited information prospectively about punishments for various crimes. Wonderland sentences would help correct our general failure to provide advance notice of the consequences of criminal conduct. While wonderland sentencing is just one of many therapeutic policy changes we could implement, given that approximately ninety-five percent of non-dismissed cases are resolved by plea bargains, wonderland sentencing has the potential to do a lot of good for a lot of people.

Introduction

In Alice’s Adventures in Wonderland, the Knave of Hearts is accused of stealing tarts.1 1.Lewis Carroll, Alice’s Adventures in Wonderland 165–66 (London, MacMillan & Co. 1866).Show More The Queen of Hearts insists that they should “[s]entence [the Knave] first” and hear the verdict afterwards.2 2.Id. at 187.Show More Alice derides “[t]he idea of having the sentence first” in an exchange scholars frequently cite to illustrate an extraordinarily absurd attempt at justice.3 3.Id.; see, e.g., Charles H. Gustafson, Judicial Review of Jeopardy Tax Collection: Sentence First, Verdict Afterwards, 26 Case W. Rsrv. L. Rev. 315, 315–16, 315 n.* (1976); Robert S. Pasley, Sentence First—Verdict Afterwards: Dishonorable Discharges Without Trial by Court-Martial?, 41 Corn. L.Q. 545, 545–47 (1956).Show More In this Essay, I defend it (at least provisionally).

Of course, we shouldn’t punish anyone prior to conviction.4 4.But cf. Saul Smilansky,Determinism and Prepunishment: The Radical Nature of Compatibilism, 67 Analysis 347, 347–48 (2007) (arguing that the compatibilist view of free will held by many philosophers leads to the conclusion that we ought to pre-punish).Show More But there is much to be said for what I call “wonderland sentencing,” in which those accused of crimes are told, prior to deciding whether to plead guilty, what their sentence would likely be if convicted at trial. Doing so could enable defendants to make better informed, fairer, and more socially advantageous decisions about whether and under what circumstances to plead guilty.

There are many possible variations on wonderland sentencing. My goal isn’t to settle the details of one particular approach. Rather, I lay out the benefits of wonderland sentencing in general terms and then consider several ways to fill in the details, keeping in mind that any particular approach will have to coordinate with the varied sentencing laws in existing jurisdictions.

The impetus for wonderland sentencing comes from what is typically the most important decision defendants must make about their cases: whether to plead guilty in exchange for a lighter sentence. The decision can be extraordinarily difficult because defendants have limited relevant information. For example, they don’t know exactly what evidence the prosecution would introduce or how convincing it would be to potential jurors. They also don’t know how well their own witnesses would testify on their behalf.

Most importantly, however, even if defendants knew all the information that would be revealed at trial, they would still lack critical information about sentence severity. In many jurisdictions, judges have wide sentencing discretion, leaving defendants uncertain about how long their sentences are likely to be.5 5.See, e.g., United States v. Jackson, 835 F.2d 1195, 1197 (7th Cir. 1987) (recognizing the broad sentencing discretion typically afforded to judges in non-guideline jurisdictions).Show More In others, there may be sentencing guidelines that limit judicial discretion.6 6.See, e.g., 18 U.S.C. § 3553(b)(1) (advising federal courts to ordinarily impose a sentence within the guideline range); Minn. Sent’g Guidelines & Comment. § 1.A (Minn. Sent’g Guidelines Comm’n 2024).Show More But even in those jurisdictions, judges still have significant sentencing discretion and are often called upon to interpret sentencing guidelines or the application of maxima and minima in ways that are hard for defense counsel to predict.7 7.Cf. United States v. Booker, 543 U.S. 220, 245, 250–51 (2005) (holding the federal sentencing guidelines to be advisory and emphasizing the importance of judicial discretion).Show More

Even when extraordinarily harsh sentences are unlikely, they can still weigh on a defendant’s decision-making.8 8.There is evidence in many domains, including mock criminal justice contexts, that vividly presented numbers can anchor people’s estimates and preferences. See, e.g., Stephanie A. Cardenas, Charged Up and Anchored Down: A Test of Two Pathways to Judgmental and Decisional Anchoring Biases in Plea Negotiations, 29 Psych. Pub. Pol’y & L. 435, 435–36 (2023) (discussing how the willingness to plead guilty or recommend guilty pleas of mock defendants and defense attorneys can be anchored by harsh potential sentences); Roland Imhoff & Christoph Nickolaus, Combined Anchoring: Prosecution and Defense Claims as Sequential Anchors in the Courtroom, 26 Legal & Criminological Psych. 215, 215, 223–24 (2021) (finding that law student experimental subjects were anchored in their mock sentencing determinations by the recommendations of both the prosecution and the defense).Show More For example, in 2024, Maine doctor Merideth Norris was found guilty of overprescribing painkillers.9 9.Shawn P. Sullivan, Kennebunk Doctor Convicted on Multiple Counts of Illegally Distributing Opioids, Portsmouth Herald (June 24, 2024, at 11:23 ET), https://www.seacoasto‌nline.com/story/news/local/york-star/2024/06/24/kennebunk-maine-doctor-merideth-norris-c‌onvicted-of-unlawfully-distributing-opioids/74191342007/ [https://perma.cc/K6LG-CPLC].Show More She was convicted on fifteen counts of unlawfully distributing controlled substances and faced a maximum of twenty years’ incarceration on each count.10 10.Id.Show More Predictably, Dr. Norris was said to face up to three hundred years’ incarceration.11 11.Id.Show More When she was ultimately sentenced, however, she received no prison time.12 12.Emily Allen, Kennebunk Doctor Will Not Serve Prison Time for Overprescribing Opioids, Portland Press Herald (May 16, 2025), https://www.pressherald.com/2025/05/15/ken‌nebunkport-doctor-will-not-serve-jail-time-for-overprescribing-opioids [https://perma.cc/7G‌4M-4C9R].Show More

In reality, Dr. Norris was never going to spend three hundred years incarcerated, and almost certainly, her attorney gave her more realistic estimates. But defendants can be traumatized simply by hearing that they face such extreme sentences. Federal judges are required to notify defendants of the maximum sentence they face under the law, but not the sentence the judge expects to assign or the sentence she considers the highest she would be likely to assign if the case were to proceed to a verdict at trial.13 13.See Fed. R. Crim. P. 11(b)(1)(H).Show More Knowledge of theoretical sentencing maxima may be particularly influential and misleading when clients distrust their often court-appointed attorneys. Moreover, even with attorney estimates, defendants may face wide plausible sentencing ranges.

Prosecutors pressure defendants to plead guilty not only by threatening long sentences but also by making strategic use of uncertainty. Rational choice theory suggests that the uncertainty of sentences will drive risk-averse defendants to plead guilty to avoid trial. The more risk-averse the defendant, the more we expect risk to drive guilty pleas. Moreover, given that risk tolerance is associated with criminal and other antisocial behaviors,14 14.SeeTim Friehe & Hannah Schildberg-Hörisch, Predicting Norm Enforcement: The Individual and Joint Predictive Power of Economic Preferences, Personality, and Self-Control, 45 Eur. J.L. & Econ. 127, 137–38 (2018); see also Thomas Epper et al., Preferences Predict Who Commits Crime Among Young Men, PNAS, Jan. 31, 2022, at 1, 5 (finding a statistically significant positive correlation between risk tolerance and criminality for property crimes, though not for violent, drug, or sexual crimes).Show More greater uncertainty at sentencing is likely to put more pressure on prosocial defendants to plead guilty than antisocial defendants—precisely the opposite of the direction we seek. Since prosocial defendants are less likely to be guilty than antisocial defendants as a general rule, uncertainty at sentencing has the perverse effect of pushing innocent defendants to plead guilty with greater force than it pushes guilty defendants to do the same.15 15.See Robert E. Scott & William J. Stuntz, Plea Bargaining as Contract, 101 Yale L.J. 1909, 1948–49 (1992).Show More Wonderland sentencing provides a way to make sentences fairer and reduce erroneous convictions by allowing defendants to make less risky, better informed decisions about whether to plead guilty.

Imagine if we lived in a world of wonderland sentencing, where defendants made plea bargaining decisions with relatively accurate potential sentence information. In such a world, I suspect, a proposal to eliminate wonderland sentencing and hide such information from defendants would strike us as about as absurd as the Queen of Hearts’s proposal. And unlike some prior proposals to give judges a larger role in plea processes,16 16.See, e.g., Daniel S. McConkie, Judges as Framers of Plea Bargaining, 26 Stan. L. & Pol’y Rev. 61, 65 (2015).Show More wonderland sentencing is unlikely to offend rules against judicial participation in plea bargaining. In fact, there may be no legal impediments to the implementation of wonderland sentencing; judges could start the process today, and it probably already occurs from time to time.

In Part I, I discuss in more detail how wonderland sentencing could work. In Part II, I analyze wonderland sentencing from traditional retributivist and consequentialist perspectives. I also discuss how those perspectives could be modified to address what I call “therapeutic retributivism” and “therapeutic consequentialism.” I conclude that while it is too soon to decide that wonderland sentencing will necessarily improve the criminal legal system, we have more than enough reason to pilot studies to gather more information.

  1.  Lewis Carroll, Alice’s Adventures in Wonderland 165–66 (London, MacMillan & Co. 1866). ↑
  2.  Id. at 187. ↑
  3.  Id.; see, e.g., Charles H. Gustafson, Judicial Review of Jeopardy Tax Collection: Sentence First, Verdict Afterwards, 26 Case W. Rsrv. L. Rev. 315, 315–16, 315 n.* (1976); Robert S. Pasley, Sentence First—Verdict Afterwards: Dishonorable Discharges Without Trial by Court-Martial?, 41 Corn. L.Q. 545, 545–47 (1956). ↑
  4.  But cf. Saul Smilansky, Determinism and Prepunishment: The Radical Nature of Compatibilism, 67 Analysis 347, 347–48 (2007) (arguing that the compatibilist view of free will held by many philosophers leads to the conclusion that we ought to pre-punish). ↑
  5.  See, e.g., United States v. Jackson, 835 F.2d 1195, 1197 (7th Cir. 1987) (recognizing the broad sentencing discretion typically afforded to judges in non-guideline jurisdictions). ↑
  6.  See, e.g., 18 U.S.C. § 3553(b)(1) (advising federal courts to ordinarily impose a sentence within the guideline range); Minn. Sent’g Guidelines & Comment. § 1.A (Minn. Sent’g Guidelines Comm’n 2024). ↑
  7.  Cf. United States v. Booker, 543 U.S. 220, 245, 250–51 (2005) (holding the federal sentencing guidelines to be advisory and emphasizing the importance of judicial discretion). ↑
  8.  There is evidence in many domains, including mock criminal justice contexts, that vividly presented numbers can anchor people’s estimates and preferences. See, e.g., Stephanie A. Cardenas, Charged Up and Anchored Down: A Test of Two Pathways to Judgmental and Decisional Anchoring Biases in Plea Negotiations, 29 Psych. Pub. Pol’y & L. 435, 435–36 (2023) (discussing how the willingness to plead guilty or recommend guilty pleas of mock defendants and defense attorneys can be anchored by harsh potential sentences); Roland Imhoff & Christoph Nickolaus, Combined Anchoring: Prosecution and Defense Claims as Sequential Anchors in the Courtroom, 26 Legal & Criminological Psych. 215, 215, 223–24 (2021) (finding that law student experimental subjects were anchored in their mock sentencing determinations by the recommendations of both the prosecution and the defense). ↑
  9.  Shawn P. Sullivan, Kennebunk Doctor Convicted on Multiple Counts of Illegally Distributing Opioids, Portsmouth Herald (June 24, 2024, at 11:23 ET), https://www.seacoasto‌nline.com/story/news/local/york-star/2024/06/24/kennebunk-maine-doctor-merideth-norris-c‌onvicted-of-unlawfully-distributing-opioids/74191342007/ [https://perma.cc/K6LG-CPLC]. ↑
  10.  Id. ↑
  11.  Id. ↑
  12.  Emily Allen, Kennebunk Doctor Will Not Serve Prison Time for Overprescribing Opioids, Portland Press Herald (May 16, 2025), https://www.pressherald.com/2025/05/15/ken‌nebunkport-doctor-will-not-serve-jail-time-for-overprescribing-opioids [https://perma.cc/7G‌4M-4C9R]. ↑
  13.  See Fed. R. Crim. P. 11(b)(1)(H). ↑
  14.  See Tim Friehe & Hannah Schildberg-Hörisch, Predicting Norm Enforcement: The Individual and Joint Predictive Power of Economic Preferences, Personality, and Self-Control, 45 Eur. J.L. & Econ. 127, 137–38 (2018); see also Thomas Epper et al., Preferences Predict Who Commits Crime Among Young Men, PNAS, Jan. 31, 2022, at 1, 5 (finding a statistically significant positive correlation between risk tolerance and criminality for property crimes, though not for violent, drug, or sexual crimes). ↑
  15.  See Robert E. Scott & William J. Stuntz, Plea Bargaining as Contract, 101 Yale L.J. 1909, 1948–49 (1992). ↑

  16.  See, e.g., Daniel S. McConkie, Judges as Framers of Plea Bargaining, 26 Stan. L. & Pol’y Rev. 61, 65 (2015). ↑

Arbitration Exceptionalism

In Morgan v. Sundance, Inc., the Supreme Court addressed a question that has arisen frequently in recent years: If a party initially pursues litigation instead of immediately invoking the right to arbitrate pursuant to a contractual agreement, at what point can it be deemed to have waived arbitration? In deference to the judicially created “federal policy favoring arbitration,” the U.S. Court of Appeals for the Eighth Circuit had required a showing that plaintiff suffered prejudice as the result of defendant’s foot-dragging. Unanimously reversing this prejudice requirement—which had been the rule in nearly every circuit—the Justices emphatically declared that arbitration agreements be treated no differently from other contractual terms. Writing for the Court, Justice Kagan explicitly cautioned courts against “invent[ing] special, arbitration-preferring procedural rules.”

Morgan marks a reversal to what has become a hallmark of modern arbitration jurisprudence: arbitration exceptionalism. For decades, federal courts have developed a body of rules that elevate arbitration agreements above ordinary contract law, often in direct conflict with statutory and doctrinal norms. From doctrines allowing non-signatories to enforce arbitration clauses under the banner of “equitable estoppel,” to permissive interpretations of browse-wrap and unilateral terms, to unique severability standards applied only in aid of arbitration, exceptional rules have reshaped contemporary doctrines governing arbitration. By signaling an end to arbitration exceptionalism, Morgan paves the way for a critical reexamination of these doctrines and a restoration of parity between arbitration and other contractual arrangements.

Introduction

The legal dispute resolved by the Supreme Court in Morgan v. Sundance, Inc. began simply enough: Morgan, an hourly employee at a Taco Bell franchise owned by Sundance, brought a nationwide collective action against her employer alleging overtime violations in contravention of the Fair Labor Standards Act (“FLSA”).1 1.Morgan v. Sundance, Inc., 142 S. Ct. 1708, 1711 (2022) (citing the Fair Labor Standards Act, 29 U.S.C. § 207(a) (setting maximum-hours standards for covered employees)).Show More While Morgan’s job application mandated that all disputes between the parties were subject to arbitration, Sundance pursued litigation instead, filing an unsuccessful motion to dismiss, answering the complaint, and participating in mediation—all without invoking the parties’ arbitration agreement.2 2.Id.Show More Then, eight months after Morgan had filed her complaint—and on the eve of the pretrial conference—Sundance abruptly changed course and moved to compel arbitration.3 3.Id.Show More

Morgan opposed the motion, arguing that Sundance had waived its right to arbitrate by actively litigating the FLSA claim in Iowa federal court, and that it was only after the judicial avenue had lost its luster that the defendant pivoted to arbitration.4 4.Morgan v. Sundance, Inc., No. 18-cv-00316, 2019 WL 5089205, at *7 (S.D. Iowa June 28, 2019) (“[T]he timing of Sundance’s actions demonstrates that it ‘wanted to play heads I win, tails you lose,’ which ‘is the worst possible reason’ for failing to move for arbitration sooner than it did.” (internal quotation marks omitted) (citations omitted)), rev’d, 992 F.3d 711 (8th Cir. 2021), vacated, 142 S. Ct. 1708 (2022).Show More The U.S. District Court for the Southern District of Iowa agreed, observing that Sundance had invoked “the litigation machinery” by waiting eight months to assert its contractual right to arbitrate.5 5.Id. at *6 (quoting Lewallen v. Green Tree Servicing, L.L.C., 487 F.3d 1085, 1090 (8th Cir. 2007)).Show More Applying traditional waiver principles—where the focus is on a party’s actions rather than on the prejudice to the opposing party—the district court held that Sundance’s conduct was inconsistent with its contractual right to arbitrate.6 6.Id.at *7 (“Sundance failed to mention the arbitration agreement in its answer, which listed numerous (fourteen) other affirmative defenses.” (citing Messina v. N. Cent. Distrib., Inc., 821 F.3d 1047, 1050 (8th Cir. 2016))); Lewallen, 487 F.3d at 1091 (“To safeguard its right to arbitration, a party must ‘do all it could reasonably have been expected to do to make the earliest feasible determination of whether to proceed judicially or by arbitration.’” (citation omitted)).Show More

On its face, the district court’s ruling seemed uncontroversial. After all, courts routinely find that parties have waived certain rights in analogous procedural contexts. For instance, it is well-settled that a defendant waives the benefit of a forum selection clause when, upon being sued in a non-designated forum, it tests the waters by engaging in litigation activities rather than moving straightaway to transfer venue.7 7.Courts generally find that removal to and “active” litigation in a forum different from the one designated in a contract between the parties waive the right to later assert a forum selection clause. See, e.g., San Miguel Produce, Inc. v. L.G. Herndon Jr. Farms, Inc., Nos. 16-cv-00035, 16-cv-00043, 2016 WL 6403964, at *3 (S.D. Ga. Oct. 27, 2016) (“[Defendant] acted inconsistently with the forum-selection clause when, on its own accord, it chose to pursue its claims in an improper forum.”).Show More Courts likewise do not hesitate to find that a party waives its right to challenge personal jurisdiction or venue when it litigates without objection in a distant forum.8 8.See, e.g.,Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584 (1999) (noting that because personal jurisdiction “‘represents a restriction on judicial power . . . as a matter of individual liberty[,]’ . . . a party may insist that the limitation be observed, or he may forgo that right, effectively consenting to the court’s exercise of adjudicatory authority” (first alteration in original) (quoting Ins. Corp. of Ir. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982))); Fed. R. Civ. P. 12(h)(1) (“A party waives any defense listed in Rule 12(b)(2)–(5) by: . . . failing to either: (i) make it by motion under this rule; or (ii) include it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course.”).Show More Even the constitutionally protected right to a jury trial may be waived by a party who fails to make a timely demand.9 9.See, e.g., Fed. R. Civ. P. 38(d) (“A party waives a jury trial unless its demand is properly served and filed.”); see also Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 848–49 (1986) (explaining that the Seventh Amendment guarantee, “as a personal right, . . . is subject to waiver, just as are other personal constitutional rights that dictate the procedures by which civil . . . matters must be tried”); Rodenbur v. Kaufmann, 320 F.2d 679, 683–84 (D.C. Cir. 1963) (“[A] jury trial lawfully may be waived . . . by inaction . . . .”); Bank of N.Y. Mellon v. Riley, No. 19-cv-00279, 2021 WL 2688615, at *2 (E.D. Tex. Feb. 17, 2021) (finding waiver where a party waited fifteen months to oppose a jury demand).Show More Across these contexts, waiver principles are straightforward: courts focus on whether the party asserting the right acted inconsistently with that right. Yet in the context of arbitration, a starkly different framework emerged—one rooted in arbitration exceptionalism.

For decades, courts justified special rules governing waiver of arbitration rights by invoking the oft-repeated “federal policy favoring arbitration.” Under this policy, courts imposed a heightened burden on plaintiffs opposing arbitration, requiring them to prove that a defendant’s delay or inconsistent litigation conduct caused them “prejudice.”10 10.At the time Morgan was decided, nine circuits required plaintiffs to establish prejudice where a defendant sought to compel arbitration after a period of active litigation. See, e.g., In re Tyco Int’l Ltd. Sec. Litig., 422 F.3d 41, 44 (1st Cir. 2005); Carcich v. Rederi A/B Nordie, 389 F.2d 692, 696 (2d Cir. 1968); PaineWebber Inc. v. Faragalli, 61 F.3d 1063, 1069 (3d Cir. 1995); Rota-McLarty v. Santander Consumer USA, Inc., 700 F.3d 690, 702 (4th Cir. 2012); Miller Brewing Co. v. Fort Worth Distrib. Co., 781 F.2d 494, 497 (5th Cir. 1986); O.J. Distrib., Inc. v. Hornell Brewing Co., 340 F.3d 345, 357 (6th Cir. 2003); Erdman Co. v. Phx. Land & Acquisition, LLC, 650 F.3d 1115, 1117 (8th Cir. 2011); ATSA of Cal., Inc. v. Cont’l Ins. Co., 702 F.2d 172, 175 (9th Cir. 1983), amended by, 754 F.2d 1394 (9th Cir. 1985); Citibank, N.A. v. Stok & Assocs., P.A., 387 F. App’x 921, 924–25 (11th Cir. 2010) (per curiam), cert. granted, 562 U.S. 1215 (mem.), and cert. dismissed, 563 U.S. 1029 (2011) (mem.). Only the U.S. Courts of Appeals for the Seventh and D.C. Circuits treated waiver of the right to arbitrate like the waiver of any other contractual right by focusing solely on the defendant’s actions, with no explicit requirement that the plaintiff show prejudice from those actions. See St. Mary’s Med. Ctr. of Evansville, Inc. v. Disco Aluminum Prods. Co., 969 F.2d 585, 590 (7th Cir. 1992); Nat’l Found. for Cancer Rsch. v. A.G. Edwards & Sons, Inc., 821 F.2d 772, 777 (D.C. Cir. 1987).Show More This prejudice requirement—a rule applicable only in arbitration cases—had become entrenched in modern jurisprudence, effectively shielding arbitration agreements from the application of ordinary waiver principles.11 11.See, e.g.,Brevard v. Credit Suisse, No. 23-cv-00428, 2024 WL 36991, at *8 (S.D.N.Y. Jan. 3, 2024) (“Unlike in ordinary cases . . . concerning the waiver of contractual rights, prejudice was the sine qua non for waiver of the right to arbitrate.”).Show More The heavy burden imposed on plaintiffs, these courts postulated, ensured that “any doubts concerning the scope of arbitrable issues [would] be resolved in favor of arbitration.”12 12.Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24–25 (1983).Show More

Applying this prejudice test, a divided U.S. Court of Appeals for the Eighth Circuit reversed the district court and granted Sundance’s motion to compel arbitration, finding that plaintiff had failed to establish that she had suffered any real prejudice from the defendant’s eight-month delay in invoking arbitration.13 13.Morgan v. Sundance, Inc., 992 F.3d 711, 715 (8th Cir. 2021). But see id. at 716 (Colloton, J., dissenting) (observing that outside the arbitration context, plaintiffs are not required to demonstrate either prejudice or detrimental reliance to establish waiver).Show More With a thumb squarely on the scale favoring arbitration, the majority concluded that Sundance had not forfeited its contractual right to arbitrate.14 14.Id. at 715 (majority opinion).Show More

Then, a surprising thing happened: the Supreme Court granted certiorari and unanimously reversed the circuit court decision.15 15.The result in Morgan was unexpected given the Supreme Court’s consistent pro-arbitration stance over the past twenty years. Moreover, the Court has found workers exempt from arbitration under Section 1 of the Federal Arbitration Act (“FAA”) in only three cases. SeeNew Prime Inc. v. Oliveira, 139 S. Ct. 532, 543–44 (2019); Sw. Airlines Co. v. Saxon, 142 S. Ct. 1783, 1793 (2022); Bissonnette v. LePage Bakeries Park St., LLC, 144 S. Ct. 905, 913 (2024).Show More Rejecting the prejudice requirement, the Court declared that an arbitration agreement must be treated the same as any other contractual provision. Writing for the Court, Justice Kagan explained that the much-cited “federal policy favoring arbitration” was never meant to grant arbitration agreements special procedural advantages.16 16.Morgan v. Sundance, Inc., 142 S. Ct. 1708, 1712–13 (2022) (remarking that the Court’s use of the “phrase” referencing a federal pro-arbitration policy was “merely an acknowledgment of the FAA’s commitment to overrule the judiciary’s longstanding refusal to enforce agreements to arbitrate” (quoting Granite Rock Co. v. Int’l Bhd. of Teamsters, 561 U.S. 287, 302 (2010))).Show More Rather, it reflected only a commitment to ending the early twentieth-century hostility toward arbitration by making arbitration agreements just as enforceable as other contracts, “but not more so.”17 17.Id.at 1713 (citation omitted); see also id. (“The federal policy is about treating arbitration contracts like all others, not about fostering arbitration.”). The Morgan Court explained that this arbitration-specific prejudice rule originated with the “decades-old” decision in Carcich v. Rederi A/B Nordie, where the Second Circuit recognized that “an overriding federal policy favoring arbitration” demanded a heavy burden be placed on those alleging waiver. Id.; Carcich, 389 F.2d 692, 696 (2d Cir. 1968). The Supreme Court observed that Carcich’s “rule and . . . reasoning spread” over the years, until most federal circuit courts had adopted a prejudice requirement for establishing waiver, relying on a policy favoring arbitration over litigation. Morgan, 142 S. Ct. at 1713.Show More Courts, Justice Kagan warned, should not be in the business of inventing “special, arbitration-preferring procedural rules” that “tilt the playing field” in favor of arbitration.18 18.Morgan, 142 S. Ct. at 1713–14; see also id. at 1714 (observing that “the FAA makes clear that courts are not to create arbitration-specific procedural rules” (citing9 U.S.C. § 6 (providing that any application under the statute “shall be made and heard in the manner provided by law for the making and hearing of motions”))).Show More Accordingly, “[i]f an ordinary procedural rule—whether of waiver or forfeiture or what-have-you—would counsel against enforcement of an arbitration contract, then so be it.”19 19.Id.at 1713.Show More

Thus, where defendants “engage in months, or even years, of litigation—filing motions to dismiss, answering complaints, and discussing settlement—before deciding they would fare better in arbitration,” courts should evaluate a “request to switch to arbitration” as they would any other litigation strategy.20 20.Id.at 1711.Show More Specifically, courts must determine whether the defendant’s conduct demonstrates a clear and intentional relinquishment of a known right to arbitrate. On this view, the prejudice requirement applied by the Eighth Circuit exemplified the very kind of arbitration exceptionalism deemed unacceptable under the Court’s jurisprudence and the terms of the Federal Arbitration Act (“FAA”) itself.21 21.Id.at 1713–14.Show More Accordingly, the Court directed the Eighth Circuit, along with ten other courts of appeals, to “[s]trip[]” the arbitration-waiver test of its prejudice requirement and ask only whether the defendant “knowingly relinquish[ed] the right to arbitrate by acting inconsistently with that right.”22 22.Id. at 1714.Show More This approach, the Court declared, allows the waiver of arbitration rights to be determined in the same manner as the waiver of other contractual rights.23 23.Id. (characterizing its decision as “[a] directive to a federal court to treat arbitration applications ‘in the manner provided by law’ for all other motions,” which “is simply a command to apply the usual federal procedural rules” (quoting 9 U.S.C. § 6)).Show More

At a doctrinal level, Morgan breathed new life into waiver as a basis for resisting arbitration requirements.24 24.See id. at 1713 (explaining that the focus of waiver is “on the actions of the person who held the right,” not “the effects of those actions on the opposing party,” so the question boils down to whether a party has “intentional[ly] relinquish[ed] or abandon[ed] . . . a known right” (quoting United States v. Olano, 507 U.S. 725, 733 (1993))).Show More In its wake, lower courts are confronting a host of knotty questions concerning the abdication of arbitration rights. For instance, at what point does a party’s litigation-related activities evince a clear intent to waive the arbitration right?25 25.See, e.g.,Doyle v. UBS Fin. Servs., Inc., 144 F.4th 122, 128 n.5 (2d Cir. 2025) (collecting cases defining the point at which a party’s conduct in court signals a clear intention to relinquish the arbitration right).Show More And now that prejudice is off the table, what other factors may courts consider in determining whether a party waived its right to arbitrate?26 26.See, e.g., Garcia v. Fuentes Rest. Mgmt. Servs. Inc., 141 F.4th 671, 677–80 (5th Cir. 2025) (outlining post-Morgan factors relevant to waiver, including participation in discovery and mediation, answering the complaint, and delaying a motion to compel arbitration).Show More Should state or federal law be applied to determine the waiver of arbitration rights governed by the FAA?27 27.See Morgan, 142 S. Ct.at 1712 (acknowledging disagreement “about the role state law might play in resolving when a party’s litigation conduct results in the loss of a contractual right to arbitrate”). A further complication is that, in some states, courts themselves disagree over whether prejudice is required to establish waiver of the right to arbitrate. CompareWagner Constr. Co. v. Pac. Mech. Corp., 157 P.3d 1029, 1035(Cal. 2007) (noting that prejudice is but one factor a court can consider in determining whether a party has waived their right to arbitration), with Lewis v. Fletcher Jones Motor Cars, Inc., 140 Cal. Rptr. 3d 206, 220 (Ct. App. 2012) (stating that prejudice is required).Show More These and many other issues are now percolating through state and federal courts; as one judge aptly observed, “The law in this area is undergoing a course correction.”28 28.Lamonaco v. Experian Info. Sols., Inc., No. 23-cv-01326, 2024 WL 1703112, at *7 (M.D. Fla. Apr. 19, 2024),rev’d, 141 F.4th 1343 (11th Cir. 2025); see alsoGaudreau v. My Pillow, Inc., No. 21-cv-01899, 2022 WL 3098950, at *6 (M.D. Fla. July 1, 2022) (“In light of Morgan, this Court must start anew in developing a rule for waiver of arbitration agreements.”); Pumphrey v. Triad Life Scis. Inc., No. 23-cv-00299, 2024 WL 69914, at *3 (N.D. Miss. Jan. 5, 2024) (“It seems possible that Morgan will, in fact, cause the Fifth Circuit to take a fresh look at its arbitration waiver jurisprudence . . . .”), rev’d, No. 24-60028, 2024 WL 4100495 (5th Cir. Sep. 6, 2024).Show More For now, it appears that consensus on these questions may be some ways off, and further Supreme Court engagement on arbitration-waiver questions would not be surprising.29 29.See, e.g.,Petition for a Writ of Certiorari at 1, Oceltip Aviation 1 Pty Ltd. v. Gulfstream Aerospace Corp., 143 S. Ct. 577 (2023) (mem.) (No. 22-470) (asking the Court to decide whether Morgan dictates that federal or state contract law serve as the basis for construing choice-of-law provisions in arbitration agreements).Show More

But the ramifications of Morgan extend far beyond the narrow question of waiver. By explicitly rejecting arbitration exceptionalism, the Court has opened the door to reevaluating a host of doctrines that have long privileged arbitration agreements. As the Ninth Circuit has declared, “Morgan teaches that there is no ‘strong federal policy favoring enforcement of arbitration agreements’”—which suggests that all judge-made, arbitration-specific rules created in the service of a supposed policy favoring arbitration are now ripe for reexamination.30 30.Armstrong v. Michaels Stores, Inc., 59 F.4th 1011, 1014 (9th Cir. 2023) (citation omitted); see alsoDeng v. Frequency Elecs., Inc., 640 F. Supp. 3d 255, 263 (E.D.N.Y. 2022) (“[A]s Morgan makes clear, there can be no special arbitration tests that go beyond the requirements of the common law . . . .”); Town of Vinton v. Certain Underwriters at Lloyds Lond., 706 F. Supp. 3d 602, 608 (W.D. La. 2023) (asserting that Morgan “clipped the wings” of the “‘strong federal policy favoring arbitration’ created by the FAA” (citation omitted)), aff’d sub nom., Town of Vinton v. Indian Harbor Ins. Co., 161 F.4th 282 (5th Cir. 2025).Show More These range from rules allowing non-signatories to enforce arbitration agreements under equitable estoppel doctrines, to permissive standards for enforcing arbitration provisions in browse-wrap contracts, to narrow interpretations of severability that preserve fundamentally unfair arbitration clauses. In each instance, the “federal policy favoring arbitration” has led courts to develop arbitration-specific procedural rules unmoored from ordinary contract law. The demise of arbitration exceptionalism, as signaled by Morgan, has the potential to reshape this doctrinal landscape.

This Article is the first to undertake a systematic examination of these arbitration-specific rules and their evolving place within modern contract and procedural law. While scholars, myself included, have chronicled the expanding reach of arbitration and noted the distinctive status conferred upon arbitration clauses, there has yet to be a focused exploration of the unique rules that have emerged from this exceptional treatment.31 31.See, e.g.,Myriam Gilles, The Day Doctrine Died: Private Arbitration and the End of Law, 2016 U. Ill. L. Rev. 371, 409; Kristen M. Blankley, The Future of Arbitration Law?, 2022 J. Disp. Resol., no. 2, at 51, 86 (concluding “that the FAA today meets the definition of a super-statute”).Show More Accordingly, Part I traces the rise of arbitration exceptionalism, examining how the Court’s invocation of a federal policy favoring arbitration has altered foundational principles of contract and procedure. Part II explores how this exceptional treatment has shaped doctrines like equitable estoppel, enabling non-signatories to enforce arbitration clauses in ways that depart from customary common law principles. Part III addresses the judicial willingness to uphold arbitration clauses in browse-wrap and other unilateral contract formats, notwithstanding common law precedents that reject such terms on the grounds that a party cannot be found to have assented to contract terms merely by using a website. And Part IV examines how arbitration exceptionalism has narrowed the doctrine of severability, often to the detriment of fairness in contracting.

In the three years since Morgan was decided, a number of litigants have sought to use its ruling to reverse legal precedents produced by over-deference to arbitration. Accordingly, Part V surveys the post-Morgan case law to assess the potency of these challenges, as well as the judicial response, in order to measure whether courts are truly abandoning arbitration exceptionalism or clinging to it under different guises. As this early decisional law demonstrates, dismantling arbitration exceptionalism will require a fundamental shift in judicial attitudes. Over time, judicial acceptance of Morgan’s mandate disclaiming arbitration favoritism may grow stronger. Or, alternatively, the judiciary’s cool reception to Morgan may reveal that arbitration exceptionalism retains deep vestigial power not easily displaced. As I have argued in prior work, unraveling the “hegemonic arbitration edifice that has stood now for decades” is no easy task.32 32.Myriam Gilles, Arbitration’s Unraveling,172 U. Pa. L. Rev. 1063, 1066–67 (2024) (describing legislative, judicial, and market-based developments that signal preferences for arbitration are in flux).Show More The first step of this project is identifying the multitude of “arbitration-specific variants of federal procedural rules” that “tilt the playing field in favor of (or against) arbitration.”33 33.Morgan v. Sundance, Inc., 142 S. Ct. 1708, 1712, 1714 (2022).Show More The next step—the one that may take a legal generation to accomplish—is convincing courts to fully embrace the principle that arbitration agreements be placed on “the same footing as other contracts.”34 34.Id. at 1713 (quoting Granite Rock Co. v. Int’l Bhd. of Teamsters, 561 U.S. 287, 302 (2010)).Show More

  1.  Morgan v. Sundance, Inc., 142 S. Ct. 1708, 1711 (2022) (citing the Fair Labor Standards Act, 29 U.S.C. § 207(a) (setting maximum-hours standards for covered employees)). ↑
  2.  Id. ↑
  3.  Id. ↑
  4.  Morgan v. Sundance, Inc., No. 18-cv-00316, 2019 WL 5089205, at *7 (S.D. Iowa June 28, 2019) (“[T]he timing of Sundance’s actions demonstrates that it ‘wanted to play heads I win, tails you lose,’ which ‘is the worst possible reason’ for failing to move for arbitration sooner than it did.” (internal quotation marks omitted) (citations omitted)), rev’d, 992 F.3d 711 (8th Cir. 2021), vacated, 142 S. Ct. 1708 (2022). ↑
  5.  Id. at *6 (quoting Lewallen v. Green Tree Servicing, L.L.C., 487 F.3d 1085, 1090 (8th Cir. 2007)). ↑
  6.  Id. at *7 (“Sundance failed to mention the arbitration agreement in its answer, which listed numerous (fourteen) other affirmative defenses.” (citing Messina v. N. Cent. Distrib., Inc., 821 F.3d 1047, 1050 (8th Cir. 2016))); Lewallen, 487 F.3d at 1091 (“To safeguard its right to arbitration, a party must ‘do all it could reasonably have been expected to do to make the earliest feasible determination of whether to proceed judicially or by arbitration.’” (citation omitted)). ↑
  7.  Courts generally find that removal to and “active” litigation in a forum different from the one designated in a contract between the parties waive the right to later assert a forum selection clause. See, e.g., San Miguel Produce, Inc. v. L.G. Herndon Jr. Farms, Inc., Nos. 16-cv-00035, 16-cv-00043, 2016 WL 6403964, at *3 (S.D. Ga. Oct. 27, 2016) (“[Defendant] acted inconsistently with the forum-selection clause when, on its own accord, it chose to pursue its claims in an improper forum.”). ↑
  8.  See, e.g., Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584 (1999) (noting that because personal jurisdiction “‘represents a restriction on judicial power . . . as a matter of individual liberty[,]’ . . . a party may insist that the limitation be observed, or he may forgo that right, effectively consenting to the court’s exercise of adjudicatory authority” (first alteration in original) (quoting Ins. Corp. of Ir. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982))); Fed. R. Civ. P.
    1

    2(h)(1) (“A party waives any defense listed in Rule 12(b)(2)–(5) by: . . . failing to either: (i) make it by motion under this rule; or (ii) include it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course.”). ↑

  9.  See, e.g., Fed. R. Civ. P. 38(d) (“A party waives a jury trial unless its demand is properly served and filed.”); see also Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 848–49 (1986) (explaining that the Seventh Amendment guarantee, “as a personal right, . . . is subject to waiver, just as are other personal constitutional rights that dictate the procedures by which civil . . . matters must be tried”); Rodenbur v. Kaufmann, 320 F.2d 679, 683–84 (D.C. Cir. 1963) (“[A] jury trial lawfully may be waived . . . by inaction . . . .”); Bank of N.Y. Mellon v. Riley, No. 19-cv-00279, 2021 WL 2688615, at *2 (E.D. Tex. Feb. 17, 2021) (finding waiver where a party waited fifteen months to oppose a jury demand). ↑
  10.  At the time Morgan was decided, nine circuits required plaintiffs to establish prejudice where a defendant sought to compel arbitration after a period of active litigation. See, e.g., In re Tyco Int’l Ltd. Sec. Litig., 422 F.3d 41, 44 (1st Cir. 2005); Carcich v. Rederi A/B Nordie, 389 F.2d 692, 696 (2d Cir. 1968); PaineWebber Inc. v. Faragalli, 61 F.3d 1063, 1069 (3d Cir. 1995); Rota-McLarty v. Santander Consumer USA, Inc., 700 F.3d 690, 702 (4th Cir. 2012); Miller Brewing Co. v. Fort Worth Distrib. Co., 781 F.2d 494, 497 (5th Cir. 1986); O.J. Distrib., Inc. v. Hornell Brewing Co., 340 F.3d 345, 357 (6th Cir. 2003); Erdman Co. v. Phx. Land & Acquisition, LLC, 650 F.3d 1115, 1117 (8th Cir. 2011); ATSA of Cal., Inc. v. Cont’l Ins. Co., 702 F.2d 172, 175 (9th Cir. 1983), amended by, 754 F.2d 1394 (9th Cir. 1985); Citibank, N.A. v. Stok & Assocs., P.A., 387 F. App’x 921, 924–25 (11th Cir. 2010) (per curiam), cert. granted, 562 U.S. 1215 (mem.), and cert. dismissed, 563 U.S. 1029 (2011) (mem.). Only the U.S. Courts of Appeals for the Seventh and D.C. Circuits treated waiver of the right to arbitrate like the waiver of any other contractual right by focusing solely on the defendant’s actions, with no explicit requirement that the plaintiff show prejudice from those actions. See St. Mary’s Med. Ctr. of Evansville, Inc. v. Disco Aluminum Prods. Co., 969 F.2d 585, 590 (7th Cir. 1992); Nat’l Found. for Cancer Rsch. v. A.G. Edwards & Sons, Inc., 821 F.2d 772, 777 (D.C. Cir. 1987). ↑
  11.  See, e.g., Brevard v. Credit Suisse, No. 23-cv-00428, 2024 WL 36991, at *8 (S.D.N.Y. Jan. 3, 2024) (“Unlike in ordinary cases . . . concerning the waiver of contractual rights, prejudice was the sine qua non for waiver of the right to arbitrate.”). ↑
  12.  Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24–25 (1983). ↑
  13.  Morgan v. Sundance, Inc., 992 F.3d 711, 715 (8th Cir. 2021). But see id. at 716 (Colloton, J., dissenting) (observing that outside the arbitration context, plaintiffs are not required to demonstrate either prejudice or detrimental reliance to establish waiver). ↑
  14.  Id. at 715 (majority opinion). ↑
  15.  The result in Morgan was unexpected given the Supreme Court’s consistent pro-arbitration stance over the past twenty years. Moreover, the Court has found workers exempt from arbitration under Section 1 of the Federal Arbitration Act (“FAA”) in only three cases. See New Prime Inc. v. Oliveira, 139 S. Ct. 532, 543–44 (2019); Sw. Airlines Co. v. Saxon, 142 S. Ct. 1783, 1793 (2022); Bissonnette v. LePage Bakeries Park St., LLC, 144 S. Ct. 905, 913 (2024). ↑
  16.  Morgan v. Sundance, Inc., 142 S. Ct. 1708, 1712–13 (2022) (remarking that the Court’s use of the “phrase” referencing a federal pro-arbitration policy was “merely an acknowledgment of the FAA’s commitment to overrule the judiciary’s longstanding refusal to enforce agreements to arbitrate” (quoting Granite Rock Co. v. Int’l Bhd. of Teamsters, 561 U.S. 287, 302 (2010))). ↑
  17.  Id. at 1713 (citation omitted); see also id. (“The federal policy is about treating arbitration contracts like all others, not about fostering arbitration.”). The Morgan Court explained that this arbitration-specific prejudice rule originated with the “decades-old” decision in Carcich v. Rederi A/B Nordie, where the Second Circuit recognized that “an overriding federal policy favoring arbitration” demanded a heavy burden be placed on those alleging waiver. Id.; Carcich, 389 F.2d 692, 696 (2d Cir. 1968). The Supreme Court observed that Carcich’s “rule and . . . reasoning spread” over the years, until most federal circuit courts had adopted a prejudice requirement for establishing waiver, relying on a policy favoring arbitration over litigation. Morgan, 142 S. Ct. at 1713. ↑
  18.  Morgan, 142 S. Ct. at 1713–14; see also id. at 1714 (observing that “the FAA makes clear that courts are not to create arbitration-specific procedural rules” (citing 9 U.S.C. § 6 (providing that any application under the statute “shall be made and heard in the manner provided by law for the making and hearing of motions”))). ↑
  19.  Id. at 1713. ↑
  20.  Id. at 1711. ↑
  21.  Id. at 1713–14. ↑
  22.  Id. at 1714. ↑
  23.  Id. (characterizing its decision as “[a] directive to a federal court to treat arbitration applications ‘in the manner provided by law’ for all other motions,” which “is simply a command to apply the usual federal procedural rules” (quoting 9 U.S.C. § 6)). ↑
  24.  See id. at 1713 (explaining that the focus of waiver is “on the actions of the person who held the right,” not “the effects of those actions on the opposing party,” so the question boils down to whether a party has “intentional[ly] relinquish[ed] or abandon[ed] . . . a known right” (quoting United States v. Olano, 507 U.S. 725, 733 (1993))). ↑
  25.  See, e.g., Doyle v. UBS Fin. Servs., Inc., 144 F.4th 122, 128 n.5 (2d Cir. 2025) (collecting cases defining the point at which a party’s conduct in court signals a clear intention to relinquish the arbitration right). ↑
  26.  See, e.g., Garcia v. Fuentes Rest. Mgmt. Servs. Inc., 141 F.4th 671, 677–80 (5th Cir. 2025) (outlining post-Morgan factors relevant to waiver, including participation in discovery and mediation, answering the complaint, and delaying a motion to compel arbitration). ↑
  27.  See Morgan, 142 S. Ct. at 1712 (acknowledging disagreement “about the role state law might play in resolving when a party’s litigation conduct results in the loss of a contractual right to arbitrate”). A further complication is that, in some states, courts themselves disagree over whether prejudice is required to establish waiver of the right to arbitrate. Compare Wagner Constr. Co. v. Pac. Mech. Corp., 157 P.3d 1029, 1035 (Cal. 2007) (noting that prejudice is but one factor a court can consider in determining whether a party has waived their right to arbitration), with Lewis v. Fletcher Jones Motor Cars, Inc., 140 Cal. Rptr. 3d 206, 220 (Ct. App. 2012) (stating that prejudice is required). ↑
  28.  Lamonaco v. Experian Info. Sols., Inc., No. 23-cv-01326, 2024 WL 1703112, at *7 (M.D. Fla. Apr. 19, 2024), rev’d, 141 F.4th 1343 (11th Cir. 2025); see also Gaudreau v. My Pillow, Inc., No. 21-cv-01899, 2022 WL 3098950, at *6 (M.D. Fla. July 1, 2022) (“In light of Morgan, this Court must start anew in developing a rule for waiver of arbitration agreements.”); Pumphrey v. Triad Life Scis. Inc., No. 23-cv-00299, 2024 WL 69914, at *3 (N.D. Miss. Jan. 5, 2024) (“It seems possible that Morgan will, in fact, cause the Fifth Circuit to take a fresh look at its arbitration waiver jurisprudence . . . .”), rev’d, No. 24-60028, 2024 WL 4100495 (5th Cir. Sep. 6, 2024). ↑
  29.  See, e.g., Petition for a Writ of Certiorari at 1, Oceltip Aviation 1 Pty Ltd. v. Gulfstream Aerospace Corp., 143 S. Ct. 577 (2023) (mem.) (No. 22-470) (asking the Court to decide whether Morgan dictates that federal or state contract law serve as the basis for construing choice-of-law provisions in arbitration agreements). ↑
  30.  Armstrong v. Michaels Stores, Inc., 59 F.4th 1011, 1014 (9th Cir. 2023) (citation omitted); see also Deng v. Frequency Elecs., Inc., 640 F. Supp. 3d 255, 263 (E.D.N.Y. 2022) (“[A]s Morgan makes clear, there can be no special arbitration tests that go beyond the requirements of the common law . . . .”); Town of Vinton v. Certain Underwriters at Lloyds Lond., 706 F. Supp. 3d 602, 608 (W.D. La. 2023) (asserting that Morgan “clipped the wings” of the “‘strong federal policy favoring arbitration’ created by the FAA” (citation omitted)), aff’d sub nom., Town of Vinton v. Indian Harbor Ins. Co., 161 F.4th 282 (5th Cir. 2025). ↑
  31.  See, e.g., Myriam Gilles, The Day Doctrine Died: Private Arbitration and the End of Law, 2016 U. Ill. L. Rev
    .

    371, 409; Kristen M. Blankley, The Future of Arbitration Law?, 2022 J. Disp. Resol., no. 2, at 51, 86 (concluding “that the FAA today meets the definition of a super-statute”). ↑

  32.  Myriam Gilles, Arbitration’s Unraveling, 172 U. Pa. L. Rev
    .

    1063, 1066–67 (2024) (describing legislative, judicial, and market-based developments that signal preferences for arbitration are in flux). ↑

  33.  Morgan v. Sundance, Inc., 142 S. Ct. 1708, 1712, 1714 (2022). ↑

  34.  Id. at 1713 (quoting Granite Rock Co. v. Int’l Bhd. of Teamsters, 561 U.S. 287, 302 (2010)). ↑

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