Download This PaperNothing to Say for the FAA: Why Arbitration Does Not Offer Unparalleled and Mutual Benefits
70 Pages Posted: 1 Jun 2020 Last revised: 8 Sep 2021
Date Written: February 1, 2020
Abstract
As the Supreme Court continues to expand the reach of the Federal Arbitration Act (FAA), scholars continue to debate whether arbitration is an adequate substitute for litigation. Arbitration’s critics are numerous and have raised many objections to its use (and frequently its compulsion by large corporations). In response, supporters have claimed that arbitration offers a host of benefits: speed, cost, finality, informality, simplicity, customizability, privacy, expertise, and better substantive outcomes. Much of the policy debate has focused on whether these touted attributes can be demonstrated empirically.
This Article sidesteps the empirical debate. It shows that even if arbitration’s proponents are empirically correct about the benefits of arbitration, none of those benefits lend support for their position. For any of arbitration’s benefits to count in its favor, the benefit should be both unparalleled—i.e., unable to be replicated in civil litigation—and mutual—i.e., beneficial to both parties. This Article examines each of arbitration’s purported benefits and finds that not a single one is both unparalleled and mutual. This conclusion holds even if the empirical claims of arbitration proponents are assumed to be true. Given arbitration’s lack of unparalleled and mutual benefits, the Article suggests repealing the FAA.
Keywords: arbitration, federal arbitration act, faa, contract, law, clause, dispute, resolution, supreme court, civil procedure, civpro, unparalleled, mutual, benefits, stephan
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