Federal Common Law and Arbitral Power
Alan Scott Rau
University of Texas at Austin School of Law; University of Texas - School of Law, The Kay Bailey Hutchison Center for Energy, Law, and Business
University of Nevada Las Vegas Law Review, Forthcoming
In the face of an overwhelming preference - at least in the academic community - for the reform of our "outdated" and "skeletal" federal arbitration statute, I make a brief plea here to leave the FAA completely alone.
The point is not simply that courts are more likely than legislators to "get it right" (although I believe they are); nor is it that the inevitable missteps and misjudgments of statutory revision may be expected to be particularly resistant to change; nor does my preference for legislative inaction rest entirely on what is conjured up by the prospect of revisiting received entitlements - the classic image of Pandora's Box.
I canvass a number of examples of both existing state legislation, and current proposals for statutory amendment, all of which seem to exemplify what we would have every reason to expect from an ongoing process of legislative reform:
- a tendency to codify conceptualism,
- the unthinking aping of foreign models with no thought for their congruence with American practice,
- the glittering temptation of sweeping systematization born of overconfidence.
I end, finally, by turning to what will be the subject of a second, longer article: The respective roles of courts and arbitrators in deciding whether to refer a dispute to arbitration is of course a recurring problem in any legal system, and the treatment of the problem in American courts has exemplified the common law at its best, able over time to get the job done well enough, if roughly, and to forge sensible, durable, commonly-accepted understandings.
Number of Pages in PDF File: 51
Keywords: arbitration, FAA, federal common law, dispute resolution
JEL Classification: K12, K20, K33, K40, K41Accepted Paper Series
Date posted: June 28, 2007
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