Kristen Blankley, Professor of Law at the University of Nebraska College of Law, has written a terrific article titled, “Standing On Its Own Shoulders: The Supreme Court’s Statutory Interpretation of the Federal Arbitration Act,” Akron Law Review, Forthcoming. In her journal article, Professor Blankley analyzes more than one-hundred United States Supreme Court decisions addressing the Federal Arbitration Act.
Here is the abstract:
Empirical evidence on the Supreme Court’s use of tools of statutory interpretation is an emerging field of legal study. This Article is the first to use these methodologies to analyze the Federal Arbitration Act (“FAA”), enacted in 1925. I analyzed 114 separate Supreme Court arbitration opinions, coding for fourteen different tools of statutory interpretation, and this article presents the results of that analysis. The most striking finding from this study is the extraordinarily insular nature of the FAA jurisprudence when compared to other scholars’ studies in their respective areas of the law. The insular nature can be determined statistically from the Supreme Court’s reliance on three key tools of interpretation: 1) prior FAA precedent, 2) the text, and 3) the Supreme Court-created arbitration canon. Relying on these insular tools, the Supreme Court expanded the FAA’s reach, required more and more disputes to be arbitrated, and limited the availability of classwide procedures. Since the 1980s, the FAA decisions increasingly favor pro-business interests at the expense of individual consumers, employees, and franchisees. These three tools provide a convenient means for achieve these pro-business ends. Given the FAA’s age and limited legislative history, the Court relies on itself to divine the intent of the act as it is applied in areas not likely in the contemplation of Congress in the 1920s. This research demonstrates empirically what various justices noted anecdotally – the Court stands on “its own shoulders” to create and enlarge the FAA’s reach.