The Lost Controversy Limitation of the Federal Arbitration Act
Stephen E. Friedman
Widener University Delaware Law School
June 21, 2012
University of Richmond Law Review, Vol. 46, No. 4, 2012
Widener Law School Legal Studies Research Paper No. 12-23
Despite Congress’s deliberate limitation of the Federal Arbitration Act (the “FAA”) to disputes arising out of a contract containing an arbitration provision, broader arbitration provisions are ubiquitous. Courts invariably enforce such provisions under the FAA. Notably, the Supreme Court has almost entirely disregarded the relevant language of the FAA and has ignored the conflict between the FAA’s narrow language and the broad language typically found in arbitration provisions. In so doing, the Court has quietly and inappropriately elevated the language of private agreements above the language of the statute.
In this article, Professor Friedman first identifies the origin of the Court’s disregard for the FAA’s language. Second, he describes the conflict between the narrow language of the statute and the broad language found in arbitration agreements. Third, Professor Friedman describes and critiques both the judicial disregard of this conflict and the corresponding expansion of the FAA’s scope. Finally, he urges courts to focus on the language of the FAA to limit the statute’s scope to only those controversies that Congress intended.
Number of Pages in PDF File: 43
Keywords: Federal Arbitration Act, arbitration, contracts, private arbitration agreements
JEL Classification: K12
Date posted: June 21, 2012