Abstract

Those who drafted and enacted the original U.S. Federal Arbitration Act (FAA) in 1925 may well have intended a far narrower statute than the FAA we have now. This article discusses application of the FAA (1) in state court to preempt state law, and (2) to the agreements of consumers and (3) workers, especially respecting (4) class actions, and (5) statutory claims. With respect to each of these five topics, the U.S. Supreme Court has been criticized for expanding the FAA beyond its original understanding. However, this article shows that the Supreme Court's task in its decisions on these topics was not merely to apply the FAA, but rather to reconcile the FAA with later developments in the law. And those later developments constituted enormous changes to the legal landscape in the U.S., far transcending the FAA or any other statute. Accordingly, this article suggests that a fair assessment of these cases requires addressing these enormous legal changes-far transcending arbitration-that occurred after 1925. Considering all this shows that these Supreme Court cases interpret the FAA in a more principled and judicious way than some critics acknowledge.

This article revises and is based on Stephen J. Ware, The Supreme Court's Defensible Interpretations of the Federal Arbitration Act in THE FEDERAL ARBITRATION ACT: SUCCESSES, FAILURES, AND A ROADMAP FOR REFORM (Bales & Gross, eds. Cambridge University Press 2024), with permission.

This paper will be part of the TDM Special Issue on "One Century of Arbitration in the United States: The Federal Arbitration Act at Home and Abroad". More information here www.transnational-dispute-management.com/news.asp?key=2077