The American law of arbitration has for some reason been replete with what

we have become accustomed to call “trilogies”1 – and the last two terms of the

U.S. Supreme Court have curiously continued that pattern. Once again the Court

has handed us three leading cases on closely related themes – and these decisions

have turned out in fact to be in many ways the most interesting of the lot. (I am

referring of course to Stolt-Nielsen,2 Rent-A-Center,3 and Concepcion.4) All three

amount to extended riffs on the Question of Questions, the scope of arbitral

power: And so the Court has continued to dip its finger into this rich mixture –

compounded of notions of judicial review, “arbitrability,” “separability,”

compétence/compétence, and the preemption of state law – all of our hard-earned

lore and learning is there.

 

Undoubtedly for the moment the greatest salience will be with respect to

arbitration clauses in contracts of adhesion entered into by consumers and

employees – and yet this recent jurisprudence has the potential of sweeping far

more broadly. It seems reasonably clear that these cases will continue to generate

endless discussion. God knows that alone would be sinister enough, but the

troubling implications don’t quite stop there. Things now seem curiously

muddled: If our law of arbitration now no longer seems to have any clear

unifying theme, any fil conducteur, this suggests that private adjudication – rather

than presenting us as it once did with a coherent and self-contained body of

doctrine – has become a hostage to a game played out on a larger stage, a pawn of

wider, systemic “political” concerns. And so – yet another untoward result –

these cases will require the reevaluation of what seemed, for a while, to constitute
comfortably settled certainties. Here is at least one step in that direction.