The Arbitration Seesaw: Federal Act Preempts General Law

Within the past three decades, the U.S. Supreme Court has teetered from its position that “the purpose of Congress in 1925 [Federal Arbitration Act] was to make arbitration agreements as enforceable as other contracts, but not more so” and has, through judicial interpretation, tottered to a position whereby the court has “abandoned all pretense of ascertaining congressional intent with respect to the Federal Arbitration Act, building instead, case by case, an edifice of its own creation.” Consequently, arbitration contracts, once subject to review under the common law doctrines of unconscionability and public policy as applied to all contracts, now appear exempt from such review and are enforceable absent such legal concerns.