Brooklyn Law Review


Jill I. Gross


The Supreme Court has decided more than two dozen cases—arising primarily from commercial, consumer, employment, and securities disputes—under the Federal Arbitration Act (FAA) since 2000. Those decisions, particularly those interpreting FAA section 2, have contributed to the Court’s modern arbitration jurisprudence, which creates a strong national policy favoring arbitration, enforces agreements to arbitrate against virtually any defense, pushes many individual claims into arbitration against the will of one or more parties, and suppresses other claims, particularly those of small dollar value. Yet those decisions describe the arbitration process as practiced when Congress enacted the FAA in 1925, not the process as practiced in the twenty-first century. This article explores the dichotomy between the Supreme Court’s theoretical understanding of arbitration on which its FAA jurisprudence is based and the reality of the current and varied practice of arbitration. This article identifies language from recent Supreme Court arbitration cases to demonstrate that the Court’s current depiction of arbitration is oversimplified and out of date. The Court’s uninformed and out-of-touch decisions have crafted a legal framework that regulates an arbitration process that largely no longer exists. This article argues that the Court’s flawed understanding of arbitration has fueled its misinterpretation of the FAA, harmed disputants, and contributed to the widely held perception that arbitration is unfair. This, in turn, has led to a shift away from arbitration as a favored method of dispute resolution for those who have a choice, while forcing the process on those without a choice.