Pamela Bookman, ‘The Arbitration-Litigation Paradox’

ABSTRACT
The Supreme Court’s interpretation of the Federal Arbitration Act is universally touted as favoring arbitration. Its arbitration cases and decisions in other areas are also viewed as supporting the Court’s more general hostility to litigation. These pro-arbitration and anti-litigation policies can be mutually reinforcing. Moreover, they appear to be mutually consistent, in part because the Court describes the essential features of arbitration as being ‘informal’, ‘speedy’, ‘efficient’ – in short, the categorical opposite of litigation. This Article contends that the Court’s approach is not as ‘pro-arbitration’ as it appears. On the contrary, the Court’s pro-arbitration and anti-litigation values sometimes conflict. When they do, hostility to litigation wins …

Bookman, Pamela, The Arbitration-Litigation Paradox (October 6, 2018). 72 Vanderbilt Law Review 1119 (2019); Temple University Legal Studies Research Paper No 2018-29.

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