Beyond the FAA: Arbitration Procedure, Practice, and Policy in Historical Perspective

Carli N. Conklin

The Federal Arbitration Act (FAA), enacted in 1925, provides a framework for how we think about arbitration procedure, practice, and policy in the United States today. Yet, the FAA, and the interpretive lens it provides, are relatively new on the horizon, historically speaking. William Blackstone included a sophisticated and fairly detailed description of arbitration in his Commentaries on the Laws of England (1765-1769). In so doing, Blackstone was not describing a new or alternative form of dispute resolution. Instead, Blackstone was describing a dispute resolution practice that had flourished in England for centuries. That same practice, like Blackstone’s Commentaries, enjoyed great popularity in the mainland British colonies in North America, where English Common Law was adapted to local circumstances. Following the American Revolution, new American state legislatures continued to affirm arbitration, with many states adopting statutory forms of arbitration that were, themselves, reflective of pre-existing English law. This combination of state-level common law and statutory arbitration shaped the way lawyers, scholars, policy advocates, and, most importantly, disputants thought about and utilized arbitration in the United States throughout the late-eighteenth, nineteenth, and early-twentieth centuries.

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