Richard Frankel of Drexel has written The Arbitration Clause as Super Contract. Here's the abstract:
It is widely acknowledged that the purpose of the Federal Arbitration Act was to place arbitration clauses on “equal footing” with other contracts. Nonetheless,federal and state courts have placed arbitration clauses on a pedestal by creating special interpretive rules for arbitration clauses that do not apply to other contracts. In doing so, they have relied extensively on the Supreme Court’s adoption of a “federal policy favoring arbitration” in the case of Moses H. Cone Memorial Hosp., Inc. v. Mercury Constr. Corp., 463 U.S. 1 (1983).
While many scholars have focused attention on the public policy rationales for and against arbitration, few have explored how arbitration clauses should be interpreted. This article fills that gap and asserts that judicial reliance on the federal policy favoring arbitration unfairly deprives litigants of access to the courts by pushing cases into arbitration that do not belong there and in the process. By creating special rules favoring arbitration that deviate from state contract law, courts are enforcing arbitration agreements in situations where they would not enforce other agreements. This article questions the basis for the federal policy favoring arbitration and identifies several areas in which courts are relying on it to over-enforce arbitration clauses. Because the original purpose of the Federal Arbitration Act was to make arbitration clauses just like other contracts, this article proposes that courts should not rely on a poorly-conceived federal policy favoring arbitration, but instead should apply general contract principles to arbitration clauses. Doing so best ensures that litigants are not unfairly forced into arbitration in situations where they never agreed to it.
