Author: Thomas J. Stipanowich*
Published: March 2012
When it comes to agreements for binding arbitration, this will be remembered as a time of intense, significant activity by the United States Supreme Court – a period in which a closely divided Court decided a series of important cases implicating key issues of law and policy. Legal historians and observers of arbitration will compare this period with the early 1960s, which saw the publication of the groundbreaking Steelworkers Trilogy, and the mid-1980s, when a second trio of Court decisions ushered in an era of pro-arbitration jurisprudence characterized by expansive interpretations of the Federal Arbitration Act (“FAA”). Now, for the third time, a triad of key precedents represents a milestone in the modern history of American arbitration. What is different on this occasion, however, is the degree of controversy provoked by the Court’s decisions, and the resultant momentum for countermeasures by other branches of government.
*William H. Webster Chair in Dispute Resolution and Professor of Law, Pepperdine University School of Law; Academic Director, Straus Institute for Dispute Resolution. The author is grateful for the support and assistance provided by the London office of WilmerHale, including Gary Born, Dr. Maxi Scherer, Jeremie Kohn, Library and Information Services Manager Sally Charin, and legal interns Nausheen Rahman and Sadie Blanchard during the author’s tenure as WilmerHale Scholar-in-Residence (Fall 2010). The author wishes to thank his valued colleague Gina McCoy, Research Librarian at Pepperdine School of Law, and Pepperdine law students Chris Herring, Daniel Lockwood, Li Meng, Maxfield Marquardt, Sara Rosenblit and Kate Vescera, all of whom assisted with research for this paper. He also thanks Tom Carbonneau and other participants in the Penn State Dickinson School of Law Yearbook on Arbitration and Mediation 2011 Symposium: The Arbitrator as Judge…and Judge of Jurisdiction; as well as Jackie Nolan-Haley and participants in the Fordham International Arbitration Symposium; and finally, Alan Morrison, Roger Transgrud and participants in the Symposium on the Future of Arbitration at George Washington University School of Law for their comments and reflections. Unless otherwise noted, of course, the observations and conclusions are the author’s own. © Thomas J. Stipanowich (2011). Earlier versions of portions of this article appeared in Thomas J. Stipanowich, Revenaltion and Reaction: The Struggle to Shape American Arbitration, in CONTEMPORARY ISSUES IN INTERNATIONAL ARBITRATION AND MEDIATION: THE FORDHAM PAPERS 2010, 97 (2011), and under the same title in the PENN STATE YEARBOOK ON ARBITRATION AND MEDIATION (2011).