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The Federal Arbitration Act and the Power of Congress Over State Courts

David S. Schwartz

University of Wisconsin Law School

Oregon Law Review, Vol. 83, No. 541, 2004
Univ. of Wisconsin Legal Studies Research Paper Archival Collection

The Federal Arbitration Act is unconstitutional as it has been applied to the states over the past 20 years. In its 1984 decision in Southland Corp. v. Keating, the Supreme Court held that FAA is substantive law binding on state courts under the Supremacy Clause. The resulting doctrine of FAA preemption has nullified dozens of state contract laws, sewn confusion in the courts, and poised the FAA to become a significant "tort reform" statute. The FAA is thus an important example of a larger recent trend of efforts to impose tort reform, indirectly, by federal regulation of state court procedure.

States' sovereignty over the structure, jurisdiction and procedure of their courts is fundamental to federalism. The Supremacy Clause requires state courts to apply federal substantive law, but the constitution assumes state courts will do so applying their own neutral rules of procedure. While state courts' implementation of federal substantive law may incidentally, in isolated cases, affect state procedural rules, Congressional efforts to impose procedural rules on state courts abridge the states' "residual and inviolable sovereignty" and impermissibly commandeer both state judges and legislatures.

The FAA is procedural regulation, notwithstanding Southland. It governs contracts about procedure and overrides the fundamentally procedural allocation of decisionmaking authority between courts and arbitrators. Looked at through every relevant context in which a substance-procedure distinction has been applied, arbitration enforcement is a procedural matter, and Congress is without power to impose it on the states.

Number of Pages in PDF File: 47

Keywords: Federal Arbitration Act, FAA, tort, constitution, State Courts, Power of Congress

JEL Classification: K40

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Date posted: October 26, 2009  

Suggested Citation

Schwartz, David S., The Federal Arbitration Act and the Power of Congress Over State Courts. Oregon Law Review, Vol. 83, No. 541, 2004; Univ. of Wisconsin Legal Studies Research Paper Archival Collection. Available at SSRN: https://ssrn.com/abstract=1492304

Contact Information

David S. Schwartz (Contact Author)
University of Wisconsin Law School ( email )
975 Bascom Mall
Madison, WI 53706
United States
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