Arbitration and Americanization: The Paternalism of Progressive Procedural Reform

Details

Author(s):
Publish Date:
March 27, 2015
Publication Title:
Yale Law Journal
Format:
Journal Article Volume 124 Pages 2940
Citation(s):
  • Amalia D. Kessler, Arbitration and Americanization: The Paternalism of Progressive Procedural Reform, 124 Yale Law Journal 2940 (2015).

Abstract

This paper joins recent scholarship suggesting that the Federal Arbitration Act of 1925 (FAA) emerged, at least in part, from a broader Progressive commitment to procedural reform. It departs, however, from the tendency among procedure scholars to conceive of such reform as top-down, federal rulemaking—a tendency that has resulted in a largely celebratory teleology, leading from a Progressive commitment to access to justice to the eventual enactment of the Federal Rules of Civil Procedure in 1938. As recognized in the historical literature, local, bottom-up initiatives (such as the creation of municipal courts and settlement houses) were central to Progressive reform. Moreover, these initiatives were used at least as much for purposes of social control as for social justice. In line with such literature, this paper examines Progressive lawyers’ efforts to develop particular institutional structures responsible for deploying arbitration—an area of inquiry neglected by scholars to date. Situating these efforts within the broader context of a decidedly paternalistic program of Progressive procedural reform, it reflects on the darker implications of the FAA’s enactment and implementation.