Abstract

http://ssrn.com/abstract=2024582
 


 



FAA Law, Without the Activism: What If the Bellwether Cases Were Decided by a Truly Conservative Court?


Richard C. Reuben


University of Missouri School of Law

March, 15 2012

Kansas Law Review, Forthcoming
University of Missouri School of Law Legal Studies Research Paper No. 2012-07

Abstract:     
The U.S. Supreme Court has decided an extraordinary number of cases under the Federal Arbitration Act in the last half century, a pattern that continues today at the pace of case or two a year. During this time, Republican presidential candidates have made much political hay out of the Supreme Court, running against the Warren Court’s “liberal activism” by promising to appoint judges who would decide cases more conservatively. In this article, I analyze whether this promise has been fulfilled in the context of the Supreme Court’s FAA jurisprudence by identifying the core principles of judicial conservatism – restraint, fidelity to text, and federalism -- and then applying them to five of the Court’s most significant FAA arbitration cases: Prima Paint v. Flood & Conklin, Southland v. Keating, Gilmer v. Interstate/Johnson Lane, Circuit City v. Adams, and, most recently, AT&T Mobility v. Concepcion. The analysis finds the conservative promise woefully disappointed in the FAA area. Instead, the article contends, the Court has been highly activist as it has used the FAA as pretext to impose its own brand of civil justice reform. Finally, the article concludes by suggesting that FAA arbitration would look very different today had the bellwether cases actually been decided by conservative jurisprudential principles -- much less visible in the dispute resolution landscape but also much more legitimate as a dispute resolution process.

Number of Pages in PDF File: 51

Keywords: arbitration, FAA, federal arbitration, conservative, Supreme Court, dispute resolution, activism, activist

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Date posted: March 17, 2012  

Suggested Citation

Reuben, Richard C., FAA Law, Without the Activism: What If the Bellwether Cases Were Decided by a Truly Conservative Court? (March, 15 2012). Kansas Law Review, Forthcoming; University of Missouri School of Law Legal Studies Research Paper No. 2012-07. Available at SSRN: http://ssrn.com/abstract=2024582

Contact Information

Richard Reuben (Contact Author)
University of Missouri School of Law ( email )
Missouri Avenue & Conley Avenue
Columbia, MO 65211
United States
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