Miscellaneous Quotes #

Power #

1. Arbitration is power, and courts are forbidden to look behind it. The protection of awards against judicial interference and, under that umbrella, of the development of organized arbitration as a rule-maker have established “judicial powers” other than those provided by federal and state constitutions. It is not possible to maintain any legally established policy or order in domestic and international trade, whether it is an order of free competition protected by antitrust legislation or any other type of economic order provided by law, if courts abdicate their power in favor of private tribunals serving private interests. American courts are presently confronted with a conflict with such private courts. In the face of the current trends in our society, the central concept of a social regime whose exclusive ordering is the totality of legislative and judicial mandates, has been weakened by the cession of segments of the law to organized arbitration. ¹

Reasoned Awards #

1. However, one cannot help but note the incongruity between the movement toward reasoned awards and the extremely limited review of the award, particularly its application of the law. Put another way: What good is a reasoned award that does not follow the law? Under the current system, an arbitrator can issue a reasoned award that conclusively demonstrates legal error and the reviewing court is required to confirm and enforce the award even though it would never do so if the opinion were issued by a court of law. ²

Neutrality #

1. One may further assume, for argument’s sake, that the answer to that question is no; that arbitrators, as stated in the Cole case, do not care who pays them so long as someone pays them, meaning they suffer no actual bias by virtue of being paid solely by the employer. The court’s statement may be taken as an accurate description of arbitrators’ subjective views on arbitrator compensation sources. It has no bearing on the objectivestandard consideration of “whether a reasonable and informed observer would question the [arbitrator’s] impartiality.” ³

Class Actions #

1. Class action-banning forced arbitration clauses were not designed to achieve fair, expeditious or cost-effective resolutions – indeed, they were not designed to be used at all. … The proof of this is evident in the recent phenomenon of “mass arbitration,” in which victims simultaneously file thousands of individual arbitrations, forcing corporate defendants to confront claims of wrongdoing and make good on their contractual promises to pay the costs of arbitrating large numbers of individual claims. … The resistance of these companies to individually arbitrating these cases ― after unilaterally forcing these provisions on their workers and consumers ― makes clear that the corporate preference for forced arbitration was never about fairness and efficiency, but about suppressing worker and consumer cases and avoiding accountability at all costs.⁴

Congressional Intent #

1. The Court has abandoned all pretense of ascertaining congressional intent with respect to the Federal Arbitration Act, building instead, case by case, an edifice of its own creation. … I have no doubt that Congress could enact, in the first instance, a federal arbitration statute that displaces most state arbitration laws. But I also have no doubt that, in 1925, Congress enacted no such statute. ⁵

General Quotes #

1. “I’ll let you write the substance, you let me write the procedure, and I’ll screw you every time.” ⁶

Footnotes #