Eric George


Recent United States Supreme Court decisions reaffirm the Court’s emphatic interpretation of the Federal Arbitration Act (FAA). In AT&T Mobility LLC v. Concepcion and American Express Co. v. Italian Colors Restaurant, the Court found that the FAA’s purpose is not merely to reverse judicial hostility to arbitration by placing agreements to arbitrate on the same footing as other contracts, but actively to promote the use of arbitration on a national scale. The Court continues to enforce arbitral awards conflicts with state law or public policy.

This Article argues that the Courts routinely invokes language, including costs, expediency, and the need to protect the freedom of contract, that has the effect of concealing a transformation that is of broader political-economic importance—the creation of conditions that protect corporations from public interference. When corporations have the assurance of likely enforcement of arbitration agreements without public oversight on disputed activities, the result is more corporate latitude to act without encountering public interference and more power than the arbitration movement that culminated in the creation of the FAA in the 1920.