Arbitration and Americanization: The Paternalism of Progressive Procedural Reform

Amalia D. Kessler, Lewis Talbot and Nadine Hearn Shelton Professor of International Legal Studies and Professor (by courtesy) of History at Stanford University, has authored “Arbitration and Americanization: The Paternalism of Progressive Procedural Reform,” Yale Law Journal, 2015 Forthcoming; Stanford Public Law Working Paper No. 2586550. In her article, Professor Kessler examines the history behind the implementation of the Federal Arbitration Act and the so-called Progressive procedural reform of the arbitral process.

Here is the 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 rule making — 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.

This and other scholarly papers written by Professor Kessler may be downloaded free of charge from the Social Science Research Network.

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