Should courts allow parties to agree to arbitrate unconscionability challenges to an arbitration agreement?
According to Jackson, a district court must determine whether an arbitration agreement satisfies §2 of the FAA before the agreement to arbitrate can be enforced. See Brief for Respondent at 11. Jackson claims that one of the basic requirements that §2 sets out is that an arbitration agreement must not be void based upon state contract law claims. See id. Because a claim of unconscionability implicates this requirement, Jackson argues that a district court must therefore decide upon an unconscionability claim before sending the parties to arbitration. See id. Furthermore, Jackson finds support for his argument in §4 of the FAA, which states: that, “if the making of the arbitration agreement or the failure, neglect or refusal to perform the same be in issue, the court shall proceed summarily to the trial thereof.” See Brief for Respondent at 16 (citing 9 U.S.C. §4). As Jackson explains, the Court has held that a contract defense, such as fraud, which is brought against an arbitration agr
