Bad Words: Arbitratable and Arbitrability
Terrible vocabulary words are among the negative effects of the arbitration industry’s prosperity that began in the 1960s. Learned people, on courts, in law offices, and among those vested with power to resolve important disputes, say awful things, like “is this dispute arbirtatable?” and “the issue of arbitrability is for the arbitrator to decide.”
Leading guilty parties include authors of Supreme Court opinions from a 6-3 majority of current Justices: Breyer, Ginsburg, Kennedy, Scalia, Sotomayor, Thomas–though not Alito, who has had a chance (in 2010’s Stolt-Nielson opinion), or Kagan or Roberts, who haven’t.
Distinguished predecessors inaugurated this terrible usage in 1960, when Justices Brennan and Whittaker first used the words in SCOTUS opinions in respective concurring and dissenting opinions in that year’s United Steelworkers v. American. Contemporaries were in on it too, with Justice White using such words in 1962’s DrakeBakeries, and Justice Harlan in 1964’s Wiley & Sons v. Livingston.
Some Justices seem to recognize how awful the words are by enclosing them in quotation marks, distancing themselves from the bad idiom. Thus did Justice Scalia insert the word in 2010’s Rent-A-Center v. Jackson–though he used it without parentheses in an earlier opinion.
Courts ought to follow Justice Alito’s example from his opinion in Stolt-Nielson. You can ask whether a dispute is covered by an arbitration clause and whether the scope of a clause addresses a dispute to an arbitrator. You don’t need awful words like arbitratable and arbitrability. They sound affected, professionally parochial, and stupid.