That's the name of this new article on the Federal Arbitration Act by Jarrod Wong of the McGeorge School of Law. Here's the abstract:
The
U.S. Supreme Court’s jurisprudence interpreting the Federal Arbitration
Act (FAA) is incoherent insofar as it relies on the concept of the
parties’ “intent.” on the matter. To illustrate this distorting
influence of "intent," the Article dissects Supreme Court opinions in
two broad sections of the FAA case law, both of which illustrate vividly
the deforming effect of intent on it. The first concerns the carving up
of jurisdiction between courts and arbitrators that goes to the
foundations of the FAA, namely, the question of which decisionmaker —
court or arbitrator — should determine whether the underlying dispute is
arbitrable. The second is a controversy of more recent provenance that
already has striking implications for all manner of consumer and
employment contracts, specifically, the question concerning the
availability of class arbitration. The result of this confused exercise
is a tottering FAA case law built on ever more rarefied abstractions of
“intent” that are little anchored in reality, but yet impact in a very
real way a broad range of contracts, including countless consumer and
employment agreements. Thus, a complete and accurate account of the
Court’s jurisprudence under the FAA is not possible without a close
scrutiny of the role of “intent,” a concept that is ultimately wanting.
