Despite leading a "federalism revival," the U.S. Supreme Court has ignored the federalism problem inherent in its decisions ifying state laws by holding them preempted. The most glaring example is the Court's continuing adherence to its badly reasoned 1984 decision in Southland Corp. v. Keating, which holds that the Federal Arbitration Act3 (FAA) binds state courts and preempts state law. The Southland doctrine restructures state dispute-resolution processes for state law claims and goes a long way towards entirely taking state courts and legislatures out of the business of making contract law. State judges have a special role in protecting federalism, because, unlike their federal counterparts, they are sworn to uphold not one, but two constitutional systems. In this Article I argue that two principled tools of statutory interpretation designed to safeguard state autonomy in the name of federalism"the doctrine of constitutional avoidance and the presumption against preemption"have been ignored, and indeed violated, by the federal courts in FAA preemption cases. I argue further that it is incumbent on state court judges to use these tools pursuant to their dual constitutional duties, which authorize and require them (1) to interpret federal statutes independently in the absence of a controlling Supreme Court precedent; and (2) to give due regard to the interests of their states in the enforcement of state laws in the absence of a clear congressional mandate to preempt those laws. This requires state courts to construe both the FAA itself and the U.S. Supreme Court's FAA preemption precedents as narrowly as good faith permits.
