For the past three decades, the U.S. Supreme Court has misconstrued the Federal Arbitration Act (FAA). In the process, the FAA has been transformed from a statute intended to mitigate judicial hostility to arbitration into one that expresses the Court’s unyielding preference for legal disputes to be resolved through arbitration. The FAA has thus become a “super-statute” that preempts any state contract law that may frustrate its purpose to promote arbitration nationwide. But following the Court’s sweeping decision in AT&T Mobility LLC v. Concepcion, state courts have started to push back—both expressly and covertly.

This Note explores the strategies that state courts have used to evade federal arbitration jurisprudence and examines the normative value of state resistance to federal common law in that context. Part I introduces the text, legislative history, and intent of the FAA. Part II discusses how the Supreme Court has used the FAA to displace state laws that it perceives as interfering with the efficiency of arbitration proceedings. Part III analyzes how state courts have responded to federal arbitration decisions that are hostile to state contract law. And Part IV generates a framework to evaluate the desirability of different kinds of state resistance to federal law in a dual sovereignty system. Ultimately, the Note concludes that state courts can optimally balance federal supremacy with state autonomy by narrowly construing the preemptive effect of federal common law.