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    In Defense of Southland: Re-Examining the Legislative History of the Federal Arbitration Act

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    Full-text available at SSRN. See link in this record. (18.65Kb)
    Issue Date
    2002
    Author
    Drahozal, Christopher R.
    Publisher
    University of Notre Dame Law Review
    Type
    Article
    Version
    http://ssrn.com/abstract=373041
    Metadata
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    Abstract
    This article challenges the conventional wisdom that the Supreme Court's decision in Southland Corp. v. Keating, holding that the Federal Arbitration Act ("FAA") applies in state court and preempts state law, was an illegitimate exercise of judicial lawmaking. Justices' O'Connor and Thomas, and numerous commentators, have strongly criticized Chief Justice Burger's majority opinion in Southland as disregarding Congress's unambiguous intent that the FAA apply only in federal court. But a reexamination of the legislative history of the FAA suggests that, while the "primary purpose" of the FAA was to make arbitration agreements enforceable in federal court, a secondary purpose was to make arbitration agreements enforceable in state court as well. Submissions to Congress by the principal drafter of the Act provide strong evidence that the FAA was intended to apply in state court. A contemporaneous commentary, overlooked by Southland critics, likewise supports that conclusion. Conversely, the vast majority of statements in the legislative history relied on by commentators to criticize the Southland holding state simply that the FAA applies in federal court, not that it applies only in federal court. Although Chief Justice Burger's analysis in Southland leaves much to be desired, this analysis supports his conclusion: that "although the legislative history is not without ambiguities, there are strong indications that Congress had in mind something more than making arbitration agreements enforceable only in the federal courts."
    Description
    Full-text available at SSRN. See link in this record.
    URI
    http://hdl.handle.net/1808/11313
    Collections
    • Distinguished Professors Scholarly Works [918]
    • Law School Scholarly Works [621]
    Citation
    Christopher R. Drahozal, In Defense of Southland: Re-Examining the Legislative History of the Federal Arbitration Act, 78 NOTRE DAME L. REV. 101 (2002).

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    Contact KU ScholarWorks
    785-864-8983
    KU Libraries
    1425 Jayhawk Blvd
    Lawrence, KS 66045
    785-864-8983

    KU Libraries
    1425 Jayhawk Blvd
    Lawrence, KS 66045
    Image Credits
     

     

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