Arbitral Power and the Limits of Contract: The New Trilogy – Vol. 22 No. 3

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Author: Alan Scott Rau*

Published: March 2012

Description: The American law of arbitration has for some reason been replete with what we have become accustomed to call “trilogies” – and the last two terms of the U.S. Supreme Court have curiously continued that pattern. Once again the Court has handed us three leading cases on closely related themes – and these decisions have turned out in fact to be in many ways the most interesting of the lot. (I am referring of course to Stolt-Nielsen, Rent-A-Center, and Concepcion.) All three amount to extended riffs on the Question of Questions, the scope of arbitral power: And so the Court has continued to dip its finger into this rich mixture – compounded of notions of judicial review, “arbitrability,” “separability,” compétence/compétence, and the preemption of state law – all of our hard-earned lore and learning is there.

Undoubtedly for the moment the greatest salience will be with respect to arbitration clauses in contracts of adhesion entered into by consumers and employees – and yet this recent jurisprudence has the potential of sweeping far more broadly. It seems reasonably clear that these cases will continue to generate endless discussion. God knows that alone would be sinister enough, but the troubling implications don’t quite stop there. Things now seem curiously muddled: If our law of arbitration now no longer seems to have any clear unifying theme, any fil conducteur, this suggests that private adjudication – rather than presenting us as it once did with a coherent and self-contained body of doctrine – has become a hostage to a game played out on a larger stage, a pawn of wider, systemic “political” concerns. And so – yet another untoward result – these cases will require the reevaluation of what seemed, for a while, to constitute comfortably settled certainties. Here is at least one step in that direction.

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*Mark G. and Judy G. Yudof Chair in Law, the University of Texas at Austin.