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The Federal Arbitration Act gives signatories to an arbitration agreement the right to have that agreement specifically enforced. The FAA does not, however, confer federal subject matter jurisdiction. Absent federal jurisdiction, a party seeking enforcement under the FAA must sue in state court. State courts, however, are far more likely than federal courts to use state contract law doctrines to avoid enforcing arbitration agreements. This has led parties seeking enforcement to look for other ways into federal court.Some federal courts have found jurisdiction over enforcement actions when the underlying dispute involves a federal question, such as when an employer is seeking to enforce an arbitration agreement against an employee who has sued for employment discrimination under Title VII. These courts reason that the text and history of the FAA require courts to quot;look throughquot; the dispute about enforceability to the underlying dispute. Other courts, however, have concluded that such a quot;look throughquot; is inconsistent with the text and history of the FAA and with the well-pleaded complaint rule.Our article explains that the difficulty of choosing one approach over the other is exacerbated because the same interpretive tools can be marshaled in favor of each approach, and because the arguments made using each interpretive tool are not mutually exclusive. Our article argues that courts should adopt the quot;look throughquot; approach.
Enacted as a special interest bill in 1925, the Federal Arbitration Act (FAA) positioned arbitration well among specialized merchant communities. Its principles relating to the legitimacy of arbitration contracts and the limited judicial supervision of arbitral awards laid the foundation for a more detailed and effective legal regulation of arbitration. Despite the advanced character of its original content, the FAA was never significantly updated by the U.S. Congress, and the standing statutory provisions did not take into account the widening scope of arbitral jurisdiction and its revolutionary impact upon adjudicatory due process. Thus, the task of adjusting the statute to new realities became the responsibility of the U. S. Supreme Court, exercising its duty over a half century and more than fifty cases with the ultimate goal to fulfill the expectations of U.S. citizenship and protect U.S. interests in global commerce. Toward a New Federal Law on Arbitration endeavors to repair the long-standing problem of updating the official text of the Federal Arbitration Act (FAA). In this book, Thomas E. Carbonneau proposes to transform the FAA into a genuine national law of arbitration, based exclusively on the federal rules applicable to arbitration. He argues for necessary change in the federal law of arbitration that will not only benefit commercial interests and the U.S. economy, but also provide protection for smaller individual interests, such as consumers and employees. This book joins the U.S. Supreme Court in proclaiming that judicial litigation is flawed. In the process, this book describes the current federal law on arbitration, provides and explains the provisions of the proposed law, while setting the stage for future adjudicatory practice.
This is a book about changing the terms of American Arbitration Law. The book contains individual views of the four co-authors and criticisms of the individual recommendations of the authors. The book contains point and counterpoint and numerous controversial ideas. The authors present the competing arguments on some of the most controversial topics in arbitration---arbitration of employment disputes between employers and their former employees and arbitration of disputes between consumers and product sellers.
Arbitration Law in America: A Critical Assessment is a source of arguments and practical suggestions for changing the American arbitration process. The book argues that the Federal Arbitration Act badly needs major changes. The authors, who have previously written major articles on arbitration law and policy, here set out their own views and argue among themselves about the necessary reforms of arbitration. The book contains draft legislation for use in international and domestic arbitration and a detailed explanation of the precise justifications for proposed legislative changes. It also contains two proposals that might be deemed radical - to ban arbitration related to the purchase of products by consumers and to prohibit arbitration of employment disputes. Each proposal is vetted fully and critiqued by one or more of the other co-authors.