Tuesday, January 15, 2013

Wong on Arbitration, Intent, and Intellectual Dishonesty

WongJarrod Jarrod Wong (McGeorge) just posted on SSRN his article  (forthcoming Florida St. U. L. Rev.) Arbitrating in the Ether of Intent.  Here's the abstract:

The U.S. Supreme Court’s jurisprudence interpreting the Federal Arbitration Act (FAA) is incoherent insofar as it relies on the concept of the parties’ “intent.” on the matter. To illustrate this distorting influence of "intent," the Article dissects Supreme Court opinions in two broad sections of the FAA case law, both of which illustrate vividly the deforming effect of intent on it. The first concerns the carving up of jurisdiction between courts and arbitrators that goes to the foundations of the FAA, namely, the question of which decisionmaker — court or arbitrator — should determine whether the underlying dispute is arbitrable. The second is a controversy of more recent provenance that already has striking implications for all manner of consumer and employment contracts, specifically, the question concerning the availability of class arbitration. The result of this confused exercise is a tottering FAA case law built on ever more rarefied abstractions of “intent” that are little anchored in reality, but yet impact in a very real way a broad range of contracts, including countless consumer and employment agreements. Thus, a complete and accurate account of the Court’s jurisprudence under the FAA is not possible without a close scrutiny of the role of “intent,” a concept that is ultimately wanting.

This is a terrific article.  Though this is far from the first article to argue that the Supreme Court’s FAA jurisprudence reasons backwards from the Court's strong policy preference for bilateral arbitration, it is the first article to rigorously analyze the Court’s shifting meaning of intent and to posit that this is the (or at least a) mechanism by which the Court does so. The article is extraordinarily timely, having been written shortly after the Court’s recent Concepcion opinion began sending up howls of disbelief, and just before the Court seems ready to do it all again in Italian Colors (see here and here).



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