Manipulating Court Doctrine for the Good of the Common Law and Compulsory Arbitration

Preston v. Ferrer from the Supreme Court in 2008 shows that the Court is steadfastly committed to fostering arbitration. In the most sweeping terms so far the Court pushed the limits of interstate commerce and reached into the California state court system to override that state's deference to administrative fact finding. In place of administrative and adjudicatory decision-making the Court again demanded arbitral dispute resolution. This Article covers, in a compact format of approximately 13,000 words, the origins of the Federal Arbitration Act and the 40 years of Supreme Court cases leading to Preston. In the form of a play it casts judicial characters at a judges' conference who explain the Act, the cases and its unintended consequences for common law doctrine. The characters then develop a tool to ameliorate the Court's doctrines. The tool they settle on has some promise for trial courts striving to be true to both the Court's rules and the older, settled common law of contracts