The Unwritten Federal Arbitration Act

Abstract

Justice Scalia’s opinion in AT&T Mobility LLC v. Concepcion presented a new challenge to lawyers and scholars concerned with the unbridled growth of mandatory consumer arbitration. Not only did the decision continue to expand the scope of the Federal Arbitration Act’s preemption of state contract law, Scalia added insult to injury by arguing that by rendering the California contract doctrine in question void, the Court the court was promoting arbitration’s core mission of making it easier for Californians to resolve their disputes. Unlike other articles that challenge the current Supreme Court’s understanding of the original intent of the FAA, or which challenge the validity of the preemption arguments as they relate to the degree of autonomy state contact law ought to have in the fact of arguments for FAA preemption, this article challenges the idea of preemption that Justice Scalia implicitly attributes to the FAA. This article argues, first, that the concept of arbitration implicitly adopted by Justice Scalia is too thin to be attractive (or even coherent). That is, despite lip-service to the “core values of arbitration”, Scalia’s conception, essentially elevates the power to design an arbitral procedure over the goals of arbitration. Second, the article argues that, given that there is substantive content to arbitral procedures that cannot be waived by the parties, there is no reason why the states should not be allowed to experiment with various mechanisms designed to promote the core values of arbitration. The article concludes by suggesting that the FAA cannot be read to preempt state law that is deigned to promote the core values of arbitration by prohibiting (for example) waivers of the right to representation, the right to have representation paid for by a collateral source, the right to assign a claim to a third party, and the right to have claims consolidated.

Keywords: Arbitration, Supreme Court, Public Policy