The Future of Arbitration Law?

Authors

Kristen M. Blankley

Abstract

This Article provides an in-depth statistical analysis of statutory interpretation of the Supreme Court’s arbitration docket. This paper follows my work in Standing on Its Own Shoulders: The Supreme Court’s Statutory Interpretation of the Federal Arbitration Act. By looking at how the Court interprets the Federal Arbitration Act (FAA), this paper makes predictions about how arbitration cases might be resolved in the future. This paper considers the reliance on and use of fourteen tools of statutory interpretation over the Court’s 52 cases and 114 separate opinions interpreting the FAA through the end of 2021. By considering four crucial sub-categories of cases, this paper draws trends and comparisons across different arbitration legal theories. Specifically, this paper analyzes class arbitration cases, preemption cases, arbitrability cases, and cases involving a potential conflict between the FAA and other federal law. This paper draws four primary conclusions. First, the class action cases will likely continue to build off of themselves, by relying on past precedent and the arbitration canon. Second, the Court will likely continue to give the FAA broad preemptive power given not only its broad support across the Court but also because of an interesting “Thomas Effect” in which Justice Thomas votes against his own prior opinions to maintain a conservative majority. Third, the arbitrability cases stand as a microcosm of the entire arbitration docket, even though they do not contain any strong trends unique to such cases. Finally, this paper draws the conclusion that the Court treats the FAA as a super-statute, giving it gravitational pull over other

Recommended Citation

Kristen M. Blankley, The Future of Arbitration Law?, 2022 J. Disp. Resol. (2022)
Available at: https://scholarship.law.missouri.edu/jdr/vol2022/iss2/7