Empirical evidence on the Supreme Court’s use of tools of statutory interpretation is an emerging field of legal study. This Article is the first to use these methodologies to analyze the Federal Arbitration Act (FAA), enacted in 1925. I analyzed 114 separate Supreme Court arbitration opinions, coding for fourteen different tools of statutory interpretation. This article presents the results of that analysis. The most striking finding from this study is the extraordinarily insular nature of the FAA jurisprudence compared to other scholars’ studies in their respective areas of the law. This nature can be determined statistically from the Supreme Court’s reliance on three key tools of interpretation: (1) prior FAA precedent; (2) the text; and (3) the Supreme Court-created arbitration canon. Relying on these specific tools, the Supreme Court expanded the FAA’s reach, required increasingly more disputes to be arbitrated, and limited the availability of classwide procedures. Since the 1980s, the FAA decisions increasingly favor business interests at the expense of individual consumers, employees, and franchisees. Given the FAA’s age and limited legislative history, the Court relies on itself to divine the Act’s intent as it applies to areas not likely in the contemplation of Congress in the 1920s. This research demonstrates empirically what various justices noted anecdotally—the Court stands on “its own shoulders” to create and enlarge the FAA’s reach.
Blankley, Kristen M.
"Standing on Its Own Shoulders: The Supreme Court's Statutory Interpretation of the Federal Arbitration Act,"
Akron Law Review: Vol. 55:
1, Article 3.
Available at: https://ideaexchange.uakron.edu/akronlawreview/vol55/iss1/3