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Rhetoric Versus Reality In Arbitration Jurisprudence: How The Supreme Court Flaunts And Flunks Contracts (And Why Contracts Teachers Need Not Teach The Cases), Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

Supreme Court rhetoric about the role of contracts and contract law in arbitration jurisprudence differs sharply from the reality of its applications. In the name of contracts, the Court administers a self-declared national policy favoring arbitration, a policy directly benefiting the judicial branch of government. This often puts the Court’s preferences ahead of those of contracting parties while declaring its mission as solely to enforce contracts in accordance with contract law. The Court thus cloaks in the rhetoric of volition a policy in tension with constitutionally-pedigreed access to justice and venerable principles of federalism.

This Article documents the rhetoric-reality gap …