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Revelation and Reaction: The Struggle to Shape American Arbitration


Thomas Stipanowich


Pepperdine University School of Law

2011

CONTEMPORARY ISSUES INTERNATIONAL ARBITRATION AND MEDIATION: THE FORDHAM PAPERS 2010, Martinus Nijhoff, 2011
Pepperdine University Legal Studies Research Paper No. 2011/11

Abstract:     
In this article, Professor Stipanowich explores recent decisions by the U.S. Supreme Court and the implications for the respective domains of courts of law and arbitration tribunals regarding so-called “gateway” determinations surrounding the enforcement of arbitration agreements and the contracts of which they are a part. The decisions address the complex interplay between federal substantive law focusing on questions of arbitrability, a body of law defined and expanded by the Court under the Federal Arbitration Act (FAA), and the law of the states and bring into play competing judicial philosophies of contractual assent and contrasting views about the balance between policies promoting the autonomy of contracting parties and judicial policing of overreaching in the context of contracts of adhesion.

According to Prof. Stipanowich, the Court’s current jurisprudence, which may be seen as establishing and expanding a “second tier” of the “revealed” substantive law of arbitrability under the FAA first given shape and substance in the 1980s, is a flashpoint for special concerns associated with standardized contracts directing consumers and employees to arbitrate. Prof. Stipanowich believes that this will inevitably add momentum to current efforts to enact national legislation outlawing pre-dispute arbitration agreements in consumer, employment and other classes of contracts, with possible negative consequences for business-to-business arbitration.

In part I of his article, Prof. Stipanowich offers a short history of the evolution of Supreme Court decisions concerning the “revelation” and expansion of federal substantive law under the Federal Arbitration Act (FAA). Parts II and III then discuss recent Supreme Court cases reflecting the Court’s continuing reliance on the wellspring of divined federal law as a basis for promoting party autonomy in arbitration while limiting lower courts’ ability to police such agreements. Part IV briefly explores the dynamic political response to the extreme, non-nuanced pro-arbitration position developed in modern Court jurisprudence. Finally, Prof. Stipanowich concludes the article by calling for carefully crafted legislation or administrative regulations limiting the use of arbitration agreements in adhesion contracts or establishing due process standards for such agreements.

Number of Pages in PDF File: 52

Keywords: Arbitration, Arbitration Agreements, Federal Arbitration Act (FAA), Supreme Court, Arbitrability, Stolt-Nielsen S.A. v. AnimalFeeds International, Rent-A-Center West v. Jackson, Arbitration Fairness Act

JEL Classification: K41

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Date posted: February 9, 2011 ; Last revised: October 14, 2011

Suggested Citation

Stipanowich, Thomas, Revelation and Reaction: The Struggle to Shape American Arbitration (2011). CONTEMPORARY ISSUES INTERNATIONAL ARBITRATION AND MEDIATION: THE FORDHAM PAPERS 2010, Martinus Nijhoff, 2011; Pepperdine University Legal Studies Research Paper No. 2011/11. Available at SSRN: http://ssrn.com/abstract=1757258

Contact Information

Thomas Stipanowich (Contact Author)
Pepperdine University School of Law ( email )
24255 Pacific Coast Highway
Malibu, CA 90263
United States
310-506-4655 (Phone)
310-506-4437 (Fax)
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