Chapter Four: Contract Freedom, Federalism, and Statutory Arbitrability - Law and Practice of United States Arbitration - Sixth Edition
1. “An Edifice of Its Own Creation”
If Yankee Stadium is the house that Ruth built, the U.S. Arbitration Act is the statute that SCOTUS rewrote, re-enacted, and through which it re-constitutionalized American citizenship. In its decisional law, the Court updated and modernized the FAA and the U.S. law of arbitration. The Court has given arbitration a contemporary form and used it as a means of resolving the inaccessibility of civil adjudication in the United States. The function and objectives of contemporary arbitration differ substantially from its predecessors. Unlike traditional arbitration, the contemporary version is not entombed in the cellar of commercial specialty. Arbitral adjudication now addresses an entire range of disputes—from commercial and contractual to statutory and regulatory. For these disagreements and conflicts, arbitrators have become as essential as judges are to court litigation.
Arbitral rulings often exceed the boundaries of the actual dispute and proceedings. The impact of arbitration on individual Americans is becoming more significant. While arbitration is private and voluntary, the volume of its activities necessarily gives it a hybrid private-public dimension. The judiciary plays a limited supervisory role in the operation of arbitration. Courts are involved primarily to remedy the scant abuses to which the process gives rise. The Court’s decisional law is built on the conviction that arbitral adjudication will not work or be useful unless arbitrators are fully independent and autonomous of the courts. In the end, arbitration’s contemporary function is completely practical. It is a means by which to supply civil justice in a trial format that is accessible and effective. It is a source of the necessary professional expertise, functions economically and effectively, and delivers enforceable results. Legitimacy is critical to contemporary arbitration. Its proceedings must be as fair as they are functional.