Originally from The Law and Practice of United States Arbitration - Seventh Edition

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1.  The Rise of the Federal Policy

At the outset of its case law on arbitration , the U.S. Supreme Court’s decisional commitment to arbitration was faint—tentative murmurings that were barely audible in the Court’s torrent of case rulings.  Moreover, the barrier of subject-matter inarbitrability was firmly in place—its regulatory impact demonstrated in litigation about the sale of securities.   Nevertheless, the Court was taking advantage of each opportunity and working steadily to build a solid foundation upon which to establish the effectiveness and then the supremacy of federal arbitration law.  The Court concluded that the winds of the Commerce Clause and the Supremacy Clause pushed federal diversity courts and, then, state tribunals to apply the provisions of the FAA in arbitration litigation.  In fact, the federal directive on arbitration was to become a veritable force of nature—a jurisdictional whirlwind that leveled any contrary provisions in the other sectors of the legal system.  The purpose underlying the Court’s endeavor was not simply to overwhelm state legislation with the strength of nationally-based regulation or even to trumpet the virtues of arbitration and advance its status as an adjudicatory process.  SCOTUS was seeking to resolve a practical problem of governance in the legal process relating to civil litigation and the ability of U.S. citizens to benefit from their constitutional rights.