Pace Law School was honored today to welcome U.S. Supreme Court Justice Sonia Sotomayor to our campus to spend the day visiting and chatting with faculty, students, alumni and invited guests. See http://newswire.blogs.law.pace.edu/2012/10/25/supreme-court-justice-sonia-sotomayor-to-visit-pace-law-school/.
I for one grabbed the opportunity to ask her privately about her views on the Supreme Court’s arbitration law jurisprudence. While she could not comment on any pending cases or issues that are likely to come before the Court (which eliminates a lot of arbitration law topics!), she did note to me that arbitration lawyers and scholars have to re-direct their attention to the legislature, and stop wasting their time (my words) on the wrong audience (her words). The Court has made it perfectly clear, she said, how it feels about litigation about arbitration, and any real change or deviation from those opinions will occur only at the legislative level. So, for those who seek real change, let’s re-focus on getting federal legislation passed to amend the Federal Arbitration Act!
I found this very interesting, although not surprising. The Court has for years been drifting to less and less regulation of Arbitration. The fact that Justice Sotomayor has stated we should start to look to the Legislature to regulate has shown that the Court will continue to drift away from regulating Arbitration and most likely feel they will not “fix” any problems the public sees with Arbitration. Whether or not the legislature will actually regulate this area has yet to be seen; the Legislature has successfully based the Federal Arbitration Act and may amend that. My worry is that corporations may continue to work around these regulations by making their Arbitration clauses more in depth to benefit their side and the Legislature will continue to fall behind on regulating that. I believe the key is that the public needs to get informed with the everyday Arbitration clauses they enter in and have no real option to take or not and they can then push the Legislature to more regulation of Arbitration clauses.
For many years, I have argued that it is high time that the legislature adopt not just an amendment of the FAA, but a brand new Arbitration Act, either based on the UNCITRAL Model or inspired by the English Arbitration Act of 1996, which in my humble opinion, is still the best that is out there.