Arbitrator as Judge . . . And Judge of Jurisdiction
Recent decisions by the U.S. Supreme Court implicate important conclusions about the respective domains of courts of law and arbitration tribunals regarding so-called "gateway" determinations surrounding the enforcement of arbitration agreements and the contracts of which they are a part. They address the complex interplay between federal substantive law focusing on questions of arbitrability, a body of law defined and expanded by the Court under the Federal Arbitration Act (FAA) and the law of the states. They bring into play competing judicial philosophies of contractual assent and contrasting views about the balance between policies promoting the autonomy of contracting parties and judicial policing of overreaching in the context of contracts of adhesion.
Thomas J. Stipanowich, Revelation and Reaction: The Struggle to Shape American Arbitration, 3 125 (2011).