Law Commons^™

Arbitrating In The Ether Of Intent, Jarrod Wong

McGeorge School of Law Scholarly Articles

The U.S. Supreme Court's jurisprudence interpreting the Federal Arbitration Act (FAA) is incoherent in a respect that is fundamental yet not quite captured in existing legal literature. Specifically, in determining the core question of whether any particular dispute should be resolved by arbitration under the FAA, the Court has stubbornly relied on the concept of the parties' “intent” on the matter. “Intent,” however, is at once elusive and polymorphic. It is elusive because the parties will often not have considered whether the particular issue is arbitrable, much less who—court or arbitrator—should decide that preliminary question. It is polymorphic as rendered …