Arbitrating in the Ether of Intent
36 Pages Posted: 13 Jan 2013 Last revised: 8 May 2014
Date Written: January 6, 2011
The U.S. Supreme Court’s jurisprudence interpreting the Federal Arbitration Act (FAA) is incoherent insofar as it relies on the concept of the parties’ “intent.” To illustrate this distorting influence of "intent," the Article dissects Supreme Court opinions in two broad sections of the FAA case law, both of which illustrate vividly the deforming effect of intent on it. The first concerns the carving up of jurisdiction between courts and arbitrators that goes to the foundations of the FAA, namely, the question of which decisionmaker — court or arbitrator — should determine whether the underlying dispute is arbitrable. The second is a controversy of more recent provenance that already has striking implications for all manner of consumer and employment contracts, specifically, the question concerning the availability of class arbitration. The result of this confused exercise is a tottering FAA case law built on ever more rarefied abstractions of “intent” that are little anchored in reality, but yet impact in a very real way a broad range of contracts, including countless consumer and employment agreements. Thus, a complete and accurate account of the Court’s jurisprudence under the FAA is not possible without a close scrutiny of the role of “intent,” a concept that is ultimately wanting.
Keywords: arbitration, contract, intent, class arbitration, federal arbitration act, gateway
JEL Classification: K12, K31, K41
Suggested Citation: Suggested Citation