Diminution Doctrine: Arbitration's First Amendment Problem

Abstract

When Congress passed the Federal Arbitration Act (“FAA”), it aimed to end an era of judicial enmity with arbitration. The FAA put arbitration agreements “upon the same footing as other contracts,” ushering in a new era of privatized adjudication. After centuries of invalidation by default, this seemingly faster, cheaper alternative to litigation became widely available. And despite early resistance, the judiciary would ultimately come to embrace, prefer even, the FAA’s “national policy favoring arbitration.” Arbitration is ubiquitous these days. Scarcely confined to contracts between comparably sophisticated commercial actors, arbitration clauses can be found in everything from cell phone contracts to employment applications. Increasing public concern with “forced arbitration” notwithstanding, the U.S. Supreme Court continues to accommodate the FAA’s ever-expanding scope. Once-stalwart defenses against federal encroachment are no match for its “liberal federal policy favoring arbitration agreements.” The FAA has transcended its remedial roots –– transforming arbitration agreements into “super contracts” replete with special rules favoring the enforcement of the formerly unenforceable. But what can be said of the broader public interest in the judicial process? As legal scholars mourn the FAA’s crushing blow to federalism, few have stopped to consider its First Amendment implications. If the right “to petition the Government for a redress of grievances” guarantees a certain degree of judicial functionality, the Court’s arbitration doctrine must ensure at least that level of protection. Diminution doctrine provides an objective framework for such an assessment. By measuring FAA enforcement against three public interests protected by the right to petition –– court access, precedential currency, and judicial review –– diminution doctrine brings into focus constitutional encroachments that contract-based critiques of mandatory arbitration often overlook. This Essay argues that the Court’s arbitration doctrine has so deeply eroded these interests that the FAA in its current form cannot withstand First Amendment scrutiny.