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Toward a New Federal Law on Arbitration$
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Thomas E. Carbonneau

Print publication date: 2014

Print ISBN-13: 9780199965519

Published to Oxford Scholarship Online: December 2014

DOI: 10.1093/acprof:oso/9780199965519.001.0001

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The Judicial Gloss

The Judicial Gloss

(p.25) 2 The Judicial Gloss
Toward a New Federal Law on Arbitration

Thomas E. Carbonneau

Oxford University Press

The U.S. Supreme Court has developed an extensive decisional law on arbitration. The FAA's early enactment prevented it from incorporating major developments in the area of arbitration. The Court's rulings modernized the statute, making arbitration a vehicle by which U.S. citizens could be guaranteed access to effective adjudication. The Court gave the FAA a destiny that far exceeds the circumstances and objectives of its original enactment. The Court's rulings introduced federal question jurisdiction into the law by federalizing arbitration and thereby preempting state laws from restricting arbitration's scope of application. The court also promoted the existence of a federal policy favoring arbitration in the statute, making arbitrability the more likely conclusion of litigation. The Court also made arbitrators more powerful by allowing them to assess their own jurisdiction and interpret the arbitral clause. Finally, the Court recognized separability and greatly confined subject matter restraints on arbitration.

Keywords:   U.S. Supreme Court, FAA, effective adjudication, federalization, federal preemption, federal question jurisdiction, scope of application, arbitrability, federal policy, separability

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