"Hugo Will Pull My Hair Out": Justice Black and Mandatory Arbitration on the Warren Court

Abstract

"Hugo Will Pull My Hair Out":Justice Black and Mandatory Arbitration on the Warren Court Theodore Salem-Mackall (bio) Call arbitration what you want, but do not call it uncontroversial. Early common-law courts refused to enforce contractual agreements to arbitrate claims, holding that parties' could not "oust" courts of their jurisdiction.1 Early American courts adopted this "ouster doctrine," and treated arbitration agreements as "revocable at will."2 Their skepticism, along with a dollop of private sector lobbying, lead to the 1925 passage of the Federal Arbitration Act. The FAA made agreements to arbitrate "as enforceable as other contracts" in federal court.3At the time of the FAA's passage, concerns existed that large corporate interests would use mandatory arbitration clauses contained in form contracts to frustrate worthy claims. The FAA's congressional advocates intended for the bill to have a narrow scope in order to forestall this.4 Yet a few progressive members of Congress were not relieved by such promises. Among them was a young Alabama senator who, though he would not actually join Congress until a year after the FAA's passage, opposed expanding the scope of mandatory arbitration throughout his life: Hugo Lafayette Black. Justice Black, who served on the Court from 1937–1971, is best known for his monumental decisions on school desegregation, freedom of the press, and procedural protections for criminal defendants.5 What he is less known for is his status as one of the Supreme Court's foremost critics of mandatory arbitration. From 1961–67, Black dissented in six cases enforcing a mandatory arbitration clause contained in a contract or collective bargaining agreement.6 His dissents often argued that strict enforcement of arbitration clauses came at the expense of a party's constitutional right to their "day in court."7 The early Warren Court shared Black's concerns. In 1953, the Court held in Wilko v. Swan that the right to bring Securities Act claims in [End Page 54] federal court could not be waived through a form contract containing an arbitration agreement.8 Yet this hostility did not last. In 1967, a very different Warren Court decided Prima Paint v. Flood & Conklin.9 Prima established that the Federal Arbitration Act made arbitration agreements "valid, irrevocable and enforceable" in federal court,10 and superseded any contrary state arbitration rules in diversity cases.11 The decision implicitly overruled a 1956 Supreme Court holding that the Federal Arbitration Act was a procedural statute that could "affect the rule of decision," and could violate Erie R. Co. v. Tompkins if applied to override contrary state law. Prima Paint also made arbitration clauses "severable" from the rest of contracts, allowing arbitrators to review "fraud in inducement" defenses to breach claims rather than courts.12 Prima marked the first in a long line of Supreme Court cases that gradually established modern "liberal enforcement" of arbitration clauses.13 Justice Black opposed every aspect of the case. In a dissent longer than the opinion, he described it as a "statutory mutilation."14 Hugo Black and the Federal Arbitration Act Black's skepticism of arbitration stemmed from his wariness of corporate power and deep belief in each person's right to a fair "day in court." Throughout his life, Black displayed a deep respect for the right to fair trials decided by impartial courts. He began his career as a Birmingham trial lawyer. This experience left him with a "devout belief" in the jury system, and in his eventual political career he pushed for stronger procedural safeguards in trial courts. To Black, only procedures which ensured fundamental fairness could allow the judiciary to achieve just outcomes and maintain its legitimacy.15 Black's political career was shaped by the Great Depression. The traumatic experience of watching Alabama residents beg for food pushed him to support the New Deal's efforts to regulate capitalism. As a Senator from 1927 to 1937, this support brought him into conflict with a range of "high-powered, deceptive, telegram-fixing, letter-framing, Washingtonvisiting [lobbyists]."16 Black sparred with special interests over his attempts to provide municipal power to impoverished Alabama towns.17 He watched them push for exemptions to his Black-Connery bill...