As noted in a recent post, since the 1980s, the U.S. Supreme Court in dozens of decisions has decided that the country has a national policy favoring arbitration over litigation. It discerns that policy from a 1925 statute that expresses no such national policy.
The Court’s injection of federal power into territory long the prerogative of the states has been heavily criticized for many years, especially by Prof. Schwartz. Scholars debate the legitimacy of its jurisprudence from the perspectives of statutory interpretation, federalism, and the relative fairness or efficacy of arbitration compared to litigation.
Less attention has been given to contract law issues in the Court’s arbitration jurisprudence. True, some scholars (like Prof. Ware and Prof. Rau) identify doctrinal infirmities or puzzles in the Court’s cases. Some, especially Prof. Ware, have noted how the Court’s talk of the contractual basis of arbitration is sometimes at odds with the jurisprudence it lays down. But this contribution to the literature compared to other aspects seems both more muted and less comprehensive.
As noted in the linked post, the Court routinely announces things like “arbitration is a matter of consent, not coercion.” (Volt 1989, Rehnquist.) But the body of rules it has established demonstrates a greater degree of federal judicial coercion than traditional consensual freedom manifest in the common law of contacts.
I’ve identified a dozen examples—general and specific—of occasions when the Court’s federal arbitration jurisprudence is at odds with the common law of contracts. The discrepancies include overt commitments the Court has made to the federal policy; covert values the Court has injected into its policy; and more narrow but surprising misstatements of the common law of contracts. Read More