Contract Freedom, Federalism, and Statutory Arbitrability - Chapter Four - Law and Practice of United States Arbitration - Seventh 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 civil adjudication. 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, ‘contemporary’ arbitration 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 judicial litigation.
Arbitral rulings often have an impact beyond the immediate dispute and actual proceedings. They can have a significant influence on non-arbitrating parties. While arbitration is private and voluntary, the range and scope of its activities necessarily gives it a hybrid private-public dimension. The judiciary plays only a limited supervisory role in the operation of arbitration. Courts are involved primarily to remedy the few 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 of courts. In the end, arbitration’s current standing and function are completely practical. Arbitration is a means by which to conduct civil adjudication through a trial format that is accessible and effective. Arbitration supplies professional expertise, functions economically and effectively, and delivers enforceable results. Legitimacy is a critical element of contemporary arbitration. Arbitral proceedings must be as fair as they are functional.