The purpose of this symposium edition of the Journal of Dispute Resolution is to widen the focus of our present-day discourse on arbitration by exploring the broader histories of arbitration in America, considering not only what arbitration procedure, practice, and policy looked like in early America (and in the earlier legal, cultural, or religious systems from which American arbitration was adopted), but also how those broader histories might contribute to important discussions and developments in arbitration procedure, practice, and policy today. To that end, we brought together scholars in law and history whose combined works restore breadth and depth to our present-day understanding of and debates about arbitration

Conklin, Carli N.

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Beyond the FAA: Arbitration Procedure, Practice, and Policy in Historical Perspective Symposium: Introduction

The Federal Arbitration Act (FAA), enacted in 1925, provides a framework for how we think about arbitration procedure, practice, and policy in the United States today. Yet, the FAA, and the interpretive lens it provides, are relatively new on the horizon, historically speakin

University of Missouri School of Law

University of Missouri School of Law Scholarship RepositoryFaculty PublicationsSpring 2016Symposium Introduction: Beyond the FAA:Arbitration Procedure, Practice, and Policy inHistorical PerspectiveCarli N. ConklinUniversity of Missouri School of Law, conklinc@missouri.eduFollow this and additional works at: http://scholarship.law.missouri.edu/facpubsPart of the Legal History CommonsThis Article is brought to you for free and open access by University of Missouri School of Law Scholarship Repository. It has been accepted forinclusion in Faculty Publications by an authorized administrator of University of Missouri School of Law Scholarship Repository.Recommended CitationCarli N. Conklin, Introduction: Beyond the Faa: Arbitration Procedure, Practice, and Policy in Historical Perspective, 2016 J. Disp.Resol. 1 (2016)JOURNAL OFDISPUTE RESOLUTIONVOLUME 2016 NUMBER 1SYMPOSIUMIntroduction:Beyond the FAA: ArbitrationProcedure, Practice, and Policy inHistorical PerspectiveCarli N. Conklin*The Federal Arbitration Act (FAA), enacted in 1925, provides a framework forhow we think about arbitration procedure, practice, and policy in the United Statestoday. Yet, the FAA, and the interpretive lens it provides, are relatively new on thehorizon, historically speaking.William Blackstone included a sophisticated and fairly detailed description ofarbitration in his Commentaries on the Laws ofEngland(1765-1769).1 In so doing,Blackstone was not describing a new or alternative form of dispute resolution. In-stead, Blackstone was describing a dispute resolution practice that had flourishedin England for centuries.2 That same practice, like Blackstone's Commentaries,* Dr. Carli N. Conklin is Associate Professor of Law and Senior Fellow in the Center for the Studyof Dispute Resolution at the University of Missouri School of Law. I would like to thank the Journal ofDispute Resolution and the Center for the Study of Dispute Resolution at the University of MissouriSchool of Law for making the Fall 2015 Journal of Dispute Resolution Symposium, Beyond the FAA:Arbitration Procedure, Practice, and Policy in Historical Perspective, possible. It was a pleasure towork with my fellow symposium authors, whose warm collegiality and insightful scholarship is un-matched A special thanks goes out to my colleagues Bob Bailey, Assistant Dean Emeritus; Rafael Gely,Director of the Center for the Study of Dispute Resolution; S.I. Strong, Manley 0. Hudson Professor ofLaw; Journal of Dispute Resolution Editor-in-Chief Ashley Zellmer Sundquist; Associate Editor-in-Chief Alexandra Sheppard; and Laura Coleman and Karen Neylon with the Center for the Study ofDispute Resolution, for their generous assistance in the symposium process. Finally, a warm thanks toDerek Roebuck at the Institute for Advanced Legal Studies (University of London), who is unparalleledboth in the breadth and depth of his scholarship on the history of arbitration and in his enthusiasm forthe work ahead.1. WILLIAM BLACKSTONE, 3 COMMENTARIES ON THE LAWS OF ENGLAND 16-17(1768). Blackstoneincludes the definition of arbitration in Volume III ("Of Private Wrongs"), Chapter I (Of the Redress ofPrivate Wrongs by the Mere Act of the Parties), Part II (Arbitration) of his Commentaries.2. Derek Roebuck explores this history, and its Greek and Roman predecessors, in a multi-volumehistory of arbitration that is both engaging and informative. See DEREK ROEBUCK, ANCIENT GREEKARBITRATION (2001); DEREK ROEBUCK & BRUNO DE LOYNES DE FUMICHON, ROMAN ARBITRATIONJOURNAL OF DISPUTE RESOLUTIONenjoyed great popularity in the mainland British colonies in North America, whereEnglish Common Law was adapted to local circumstances.3 Following the Ameri-can Revolution, new American state legislatures continued to affirm arbitration,with many states adopting statutory forms of arbitration that were, themselves, re-flective of pre-existing English law.4 This combination of state-level common lawand statutory arbitration shaped the way lawyers, scholars, policy advocates, and,most importantly, disputants thought about and utilized arbitration in the UnitedStates throughout the late-eighteenth, nineteenth, and early-twentieth centuries.5It was not until 1925 that Congress passed the Federal Arbitration Act.6 Yet,our recent law and policy debates about arbitration (and there are many) tend tolook from the FAA forward for an interpretive lens. Viewing arbitration throughthat lens skews the discourse on arbitration by unnecessarily narrowing both ourunderstanding of arbitration practice and procedure across American history andthe scope of the policy arguments we ought to consider when evaluating its use. Asthe articles below demonstrate, such a narrow focus ultimately skews even our un-derstanding, interpretation, and application of the FAA itself.The purpose of this symposium edition of the Journal of Dispute Resolution isto widen the focus of our present-day discourse on arbitration by exploring thebroader histories of arbitration in America, considering not only what arbitrationprocedure, practice, and policy looked like in early America (and in the earlier legal,cultural, or religious systems from which American arbitration was adopted), butalso how those broader histories might contribute to important discussions and de-velopments in arbitration procedure, practice, and policy today. To that end, we(2004); DEREK ROEBUCK, EARLY ENGLISH ARBITRATION (2008); DEREK ROEBUCK, MEDIATION ANDARBITRATION IN THE MIDDLE AGES: ENGLAND 1154-1558 (2013); DEREK ROEBUCK, THE GOLDEN AGEOF ARBITRATION: DISPUTE RESOLUTION UNDER ELIZABETH 1 (2015).3. See generally MARY SARAH BILDER, THE TRANSATLANTIC CONSTITUTION: COLONIAL LEGALCULTURE AND THE EMPIRE (2008) (discussing of the adaptation of the English Common Law to theBritish mainland colonies in North America); JEROLD AUERBACH, JUSTICE WITHOUT LAW (1984)(providing a history of dispute resolution in the United States).Several works have addressed the history of arbitration in the American colonies and early Americanstates. See William Catron Jones, Three Centuries of Commercial Arbitration in New York: A BriefSurvey, 1956 WASH. U. L. Q. 193; MORTON HORWITZ, THE TRANSFORMATION OF AMERICAN LAW:1780-1860 (1977); Eben Moglen, Note, Commercial Arbitration in the Eighteenth Century: Searchingfor the Transformation ofAmerican Law, 93 YALE L.J. 135, 149 (1983); BRUCE H. MANN, NEIGHBORSAND STRANGERS: LAW AND COMMUNITY IN EARLY CONNECTICUT (1987); Carli N. Conklin, Trans-formed, Not Transcended- Extrajudicial Dispute Resolution in Antebellum Kentucky and New Jersey, 48AM. J. LEGAL HST. 39 (2006); James Oldham & Su Jin Kim, Arbitration in America: The Early History,31 LAW & HIST. REV. 241 (2013); and Carli N. Conklin, Lost Options for Mutual Gain? The Layperson,the Lawyer, and Dispute Resolution in Early America, 28 OHIO STATE J. ON DISP. RESOL. 581 (2013).Jerold Auerbach (generally), Morton Horwitz (Massachusetts, New York, Pennsylvania, and South Car-olina), and Bruce Mann (Connecticut) describe a breakdown of arbitration that corresponds to a break-down of community norms and rise of the legal profession. Eben Moglen (New York), William CatronJones (New York), and Carli Conklin (Kentucky, New Jersey, and Massachusetts) describe a robustsystem of arbitration that continued throughout the antebellum period. James Oldham and Su Jin Kimdescribe early American adoption of English models of arbitration, with specific emphasis on the Lockestatute, in Pennsylvania and Maryland.4. Oldham & Kim, Arbitration in America: The Early History, supra note 3; Conklin, Lost Options,supra note 3.5. See generally Wesley A. Sturges, Common-Law Arbitration and Statutory Arbitration: ProblemsArising from Their Coexistence, 46 MINN. LAW. REV. 819 (1961-1962) (discussing the continued exist-ence of common law and statutory arbitration at the state level).6. 9 U.S.C.§ 1 (2012)[Vol. 2016Beyond the FAAbrought together scholars in law and history whose combined works restore breadthand depth to our present-day understanding of and debates about arbitration.Our exploration begins with Margo Todd's article, "For eschewing of troubleand exorbitant expense" Arbitration in the Early Modern British Isles.7 Dr.Todd provides valuable insights into binding arbitration in British customary law,arguing that arbitration was favored over litigation in early modem Britain for itscommunity focus, speed, efficacy, and uniformity of procedure. In her discussion,Dr. Todd also counters prevailing histories on arbitration by providing a fresh andnuanced analysis of Chief Justice Coke's ruling on arbitration in Vinyor's case(1609).Francis Boorman takes a close look at Queen Elizabeth I's use of arbitrationto address the disputes stemming from an elite couple's marital breakdown in Ar-bitration and Elite Honour in Elizabethan England: A Case Study of Bess ofHardwick.8 Dr. Boorman's essay is important for many reasons, not the least ofwhich are his illumination of the monarch's promotion of arbitration, and the im-portant role that reconciliation, honor, and ideas about gender played in the resolu-tion of disputes-and the selection of arbitration as a dispute resolution procedure-in sixteenth-century England.Derek Roebuck's piece, The English Inheritance: What the First AmericanColonists Knew of Mediation and Arbitration, explores official commissions tomediation and arbitration in seventeenth-century England and private mediationsand arbitrations in the same time period, highlighting connections to arbitration inearly America. Professor Roebuck's article, which he presented at the SymposiumWorks-in-Progress Conference, will appear in the Fall 2016 edition of the Journalof Dispute Resolution.9James Oldham's keynote address, The Historically Shifting Sands of Rea-sons to Arbitrate,"0 draws comparisons between arbitration practice in eighteenth-century England and in America, providing a rich historical understanding of keyattributes that led disputants to select arbitration over litigation as a means of re-solving their disputes. As Professor Oldham demonstrates, participants selectedarbitration not only for its speed, economy, informality, and finality, but also for itsdistinct process benefits. Those benefits included participants' ability to take partin the selection of the arbitrator, the benefit of arbitrator expertise in the subjectmatter of the dispute, confidentiality of the process, the ability to conduct discovery(including the production of sworn witness testimony and relevant documentaryevidence), and arbitration's ability to effectively manage and resolve complexcases.The arbitration practices that were prevalent in both England and the mainlandBritish colonies in North America continued as those colonies transitioned into be-coming new American states. In my article, A Variety of State-Level Procedures,Practices, and Policies: Arbitration in Early America,' I" I look to the history of7. Margo Todd, "For eschewing of trouble and exorbitant expense ": Arbitration in the Early Mod-ern British Isles 2016 J. DisP. RESOL. 7.8. Francis Boorman, Arbitration and Elite Honour in Elizabethan England. A Case Study of Bess ofHardwick, 2016 J. DISP. RESOL. 19.9. Derek Roebuck, The English Inheritance: What the First American Colonists Knew of MediationandArbitration 2016 J. DisP. RESOL. (forthcoming 2016).10. James Oldham, The Historically Shifting Sands of Reasons to Arbitrate, 2016 J. DiSP. RESOL. 41.11. Carli N. Conklin, A Variety of State-Level Procedures, Practices, and Policies: Arbitration inEarly America, 2016 J. DiSP. RESOL. 55.No. 1]JOURNAL OF DISPUTE RESOLUTIONantebellum Kentucky, New Jersey, and Massachusetts to explore not only how Eng-lish arbitration was adopted by (and adapted to) the British colonies in North Amer-ica and the new American states, but also how that diversity of arbitration policies,procedures, and practices continued to exist at the state level throughout the ante-bellum period.Early American arbitration was reflective not only of English custom and law,but also of the policies and practices of Quakers, who had long utilized arbitrationto resolve disputes. F. Peter Phillips' article, Ancient and Comely Order: The Useand Disuse ofArbitration by New York Quakers12 provides a terrific overview ofthat history, shedding light on Quaker arbitration practice in New York from theeighteenth century through the mid-twentieth century. Phillips identifies key attrib-utes shared by Quaker arbitration and mercantile arbitration-such as maintainingcommunity, applying community-specific standards of conduct to the resolution ofdisputes, and mutual accountability-arguing that these attributes are distinctive to,and remain essential for, the efficacy of the arbitration process.Imre Szalai takes a historical perspective on the passage of the FAA in hisarticle, Exploring The Federal Arbitration Act Through The Lens Of History. 3Professor Szalai not only describes the historical context within which the FAA waspassed, looking at the wide variety of social, political, economic, and militaryevents that influenced its passage, but also explains why that history matters. Pro-fessor Szalai demonstrates how a rich understanding of the FAA's history chal-lenges the Supreme Court's interpretation of the FAA, informs current debates overarbitration, and provides a richer understanding of the role that arbitration plays inthe legal system today.Hiro Aragaki also looks to the history of the FAA as he brings new insightsto current debates surrounding arbitration in his article, Constructions of Arbitra-tion's Informalism: Autonomy, Efficiency, and Justice. 4 Professor Aragaki ex-plores the historical context surrounding the enactment of the FAA, revealing thatarbitration's primary advantage over litigation at the passage of the FAA was notautonomy or efficiency, which are oft-heralded as arbitration's primary benefits to-day. Instead, Professor Aragaki argues that arbitration's primary advantage overlitigation was then-and should still be today-arbitration's ability to achieve jus-tice.Jill Gross's article, The Historical Basis of Securities Arbitration as an In-vestor Protection Mechanism,5 brings a historical perspective to securities arbitra-tion, the primary process used by the securities industry to resolve disputes. Pro-fessor Gross challenges current investor and industry distrust of securities arbitra-tion by revealing the reasons behind the securities industry's early designation ofarbitration for the resolution of investor disputes. As Professor Gross demonstrates,these reasons include not only speed, efficiency, and fairness, but also, and more12. F. Peter Phillips, Ancient and Comely Order: The Use and Disuse of Arbitration by New YorkQuakers, 2016 J. DISP. RESOL. 81.13. Imre Szalai, Exploring The Federal Arbitration Act Through The Lens Of History, 2016 J. DiSp.RESOL. 117.14. Hiro Aragaki, Constructions of Arbitration's Informalism: Autonomy, Efficiency, and Justice,2016 J. DisP. RESOL. 143.15. Jill Gross, The Historical Basis of Securities Arbitration as an Investor Protection Mechanism,2016 J. Disp. RESOL. 173.[Vol. 2016Beyond the FAAimportantly, arbitration's unique ability to protect investors, build trust and credi-bility, and thereby encourage investors to use the securities exchanges exchangesystem.As these articles demonstrate, the history of arbitration is both broad and deep.It includes the wide variety of reasons that led individuals to choose arbitration inseventeenth- and eighteenth-century Scotland and England, and the ways in whichhistoric English practice was adopted by and adapted to the mainland North Amer-ican colonies and the new United States. It includes the English monarch encour-aging arbitration to resolve marital disputes, Quakers and merchants utilizing arbi-tration to resolve disputes while preserving community, and the use of arbitrationto protect investors in the securities industry. It involves arbitration under the 1925Federal Arbitration Act, state-level common law and statutory models of arbitra-tion, and process elements that have attracted an impressive variety of private indi-viduals, consumers, industries, and religious groups to arbitration for centuries. Abroad look at the history of arbitration indicates that individuals and organizationshave chosen arbitration to resolve their disputes not only out of a desire for speed,economy, and finality, but also out of a desire for community, expertise, accounta-bility, evidence, credibility, trust, and justice.In short, the history of arbitration is as nuanced and diverse as the reasons whypeople may choose arbitration to resolve their disputes. Looking beyond theFAA-to the diversity of arbitration policies, practices, and procedures that existedin the United States before the FAA and to those that have continued or developedsince its enactment-provides us with an opportunity to inform our current debateswith a more complete (and complex) understanding of this centuries-long legal tra-dition. I hope you will join us in that pursuitNo. 1]

Symposium Introduction: Beyond the FAA: Arbitration Procedure, Practice, and Policy in Historical Perspective

Journal of Dispute Resolution Volume 2016 Issue 1 Article 3 2016 Beyond the FAA: Arbitration Procedure, Practice, and Policy in Historical Perspective Symposium: Introduction Carli N. Conklin University of Missouri School of Law, conklinc@missouri.edu Follow this and additional works at: https://scholarship.law.missouri.edu/jdr  Part of the Dispute Resolution and Arbitration Commons Recommended Citation Carli N. Conklin, Beyond the FAA: Arbitration Procedure, Practice, and Policy in Historical Perspective Symposium: Introduction, 2016 J. Disp. Resol. (2016) Available at: https://scholarship.law.missouri.edu/jdr/vol2016/iss1/3 This Conference is brought to you for free and open access by the Law Journals at University of Missouri School of Law Scholarship Repository. It has been accepted for inclusion in Journal of Dispute Resolution by an authorized editor of University of Missouri School of Law Scholarship Repository. For more information, please contact bassettcw@missouri.edu.  JOURNAL OF DISPUTE RESOLUTION VOLUME 2016            NUMBER 1  SYMPOSIUM  Introduction: Beyond the FAA: Arbitration Procedure, Practice, and Policy in Historical Perspective Carli N. Conklin* The Federal Arbitration Act (FAA), enacted in 1925, provides a framework for how we think about arbitration procedure, practice, and policy in the United States today.  Yet, the FAA, and the interpretive lens it provides, are relatively new on the horizon, historically speaking. William Blackstone included a sophisticated and fairly detailed description of arbitration in his Commentaries on the Laws of England (1765-1769).1  In so doing, Blackstone was not describing a new or alternative form of dispute resolution.  In-stead, Blackstone was describing a dispute resolution practice that had flourished in England for centuries.2  That same practice, like Blackstone’s Commentaries,                                                           * Dr. Carli N. Conklin is Associate Professor of Law and Senior Fellow in the Center for the Study of Dispute Resolution at the University of Missouri School of Law.  I would like to thank the Journal of Dispute Resolution and the Center for the Study of Dispute Resolution at the University of Missouri School of Law for making the Fall 2015 Journal of Dispute Resolution Symposium, Beyond the FAA: Arbitration Procedure, Practice, and Policy in Historical Perspective, possible.  It was a pleasure to work with my fellow symposium authors, whose warm collegiality and insightful scholarship is un-matched.  A special thanks goes out to my colleagues Bob Bailey, Assistant Dean Emeritus; Rafael Gely, Director of the Center for the Study of Dispute Resolution; S.I. Strong, Manley O. Hudson Professor of Law; Journal of Dispute Resolution Editor-in-Chief, Ashley Zellmer Sundquist; Associate Editor-in-Chief Alexandra Sheppard; and Laura Coleman and Karen Neylon with the Center for the Study of Dispute Resolution, for their generous assistance in the symposium process.   Finally, a warm thanks to Derek Roebuck at the Institute for Advanced Legal Studies (University of London), who is unparalleled both in the breadth and depth of his scholarship on the history of arbitration and in his enthusiasm for the work ahead.  1. WILLIAM BLACKSTONE, 3 COMMENTARIES ON THE LAWS OF ENGLAND 16-17 (1768).  Blackstone includes the definition of arbitration in Volume III (“Of Private Wrongs”), Chapter I (Of the Redress of Private Wrongs by the Mere Act of the Parties), Part II (Arbitration) of his Commentaries.  2. Derek Roebuck explores this history, and its Greek and Roman predecessors, in a multi-volume history of arbitration that is both engaging and informative. See DEREK ROEBUCK, ANCIENT GREEK ARBITRATION (2001); DEREK ROEBUCK & BRUNO DE LOYNES DE FUMICHON, ROMAN ARBITRATION 1Conklin: Beyond the FAA: Arbitration Procedure, Practice, and Policy in HiPublished by University of Missouri School of Law Scholarship Repository, 20162 JOURNAL OF DISPUTE RESOLUTION [Vol. 2016 enjoyed great popularity in the mainland British colonies in North America, where English Common Law was adapted to local circumstances.3  Following the Ameri-can Revolution, new American state legislatures continued to affirm arbitration, with many states adopting statutory forms of arbitration that were, themselves, re-flective of pre-existing English law.4  This combination of state-level common law and statutory arbitration shaped the way lawyers, scholars, policy advocates, and, most importantly, disputants thought about and utilized arbitration in the United States throughout the late-eighteenth, nineteenth, and early-twentieth centuries.5 It was not until 1925 that Congress passed the Federal Arbitration Act.6  Yet, our recent law and policy debates about arbitration (and there are many) tend to look from the FAA forward for an interpretive lens.  Viewing arbitration through that lens skews the discourse on arbitration by unnecessarily narrowing both our understanding of arbitration practice and procedure across American history and the scope of the policy arguments we ought to consider when evaluating its use.  As the articles below demonstrate, such a narrow focus ultimately skews even our un-derstanding, interpretation, and application of the FAA itself. The purpose of this symposium edition of the Journal of Dispute Resolution is to widen the focus of our present-day discourse on arbitration by exploring the broader histories of arbitration in America, considering not only what arbitration procedure, practice, and policy looked like in early America (and in the earlier legal, cultural, or religious systems from which American arbitration was adopted), but also how those broader histories might contribute to important discussions and de-velopments in arbitration procedure, practice, and policy today.  To that end, we                                                           (2004); DEREK ROEBUCK, EARLY ENGLISH ARBITRATION (2008); DEREK ROEBUCK, MEDIATION AND ARBITRATION IN THE MIDDLE AGES: ENGLAND 1154-1558 (2013); DEREK ROEBUCK, THE GOLDEN AGE OF ARBITRATION: DISPUTE RESOLUTION UNDER ELIZABETH I (2015).  3. See generally MARY SARAH BILDER, THE TRANSATLANTIC CONSTITUTION: COLONIAL LEGAL CULTURE AND THE EMPIRE (2008) (discussing of the adaptation of the English Common Law to the British mainland colonies in North America); JEROLD AUERBACH, JUSTICE WITHOUT LAW (1984) (providing a history of dispute resolution in the United States). Several works have addressed the history of arbitration in the American colonies and early American states.  See William Catron Jones, Three Centuries of Commercial Arbitration in New York: A Brief Survey, 1956 WASH. U. L. Q. 193; MORTON HORWITZ, THE TRANSFORMATION OF AMERICAN LAW: 1780-1860 (1977); Eben Moglen, Note, Commercial Arbitration in the Eighteenth Century: Searching for the Transformation of American Law, 93 YALE L.J. 135, 149 (1983); BRUCE H. MANN, NEIGHBORS AND STRANGERS: LAW AND COMMUNITY IN EARLY CONNECTICUT (1987); Carli N. Conklin, Trans-formed, Not Transcended: Extrajudicial Dispute Resolution in Antebellum Kentucky and New Jersey, 48 AM. J. LEGAL HST. 39 (2006); James Oldham & Su Jin Kim, Arbitration in America: The Early History, 31 LAW & HIST. REV. 241 (2013); and Carli N. Conklin, Lost Options for Mutual Gain? The Layperson, the Lawyer, and Dispute Resolution in Early America, 28 OHIO STATE J. ON DISP. RESOL. 581 (2013). Jerold Auerbach (generally), Morton Horwitz (Massachusetts, New York, Pennsylvania, and South Car-olina), and Bruce Mann (Connecticut) describe a breakdown of arbitration that corresponds to a break-down of community norms and rise of the legal profession.  Eben Moglen (New York), William Catron Jones (New York), and Carli Conklin (Kentucky, New Jersey, and Massachusetts) describe a robust system of arbitration that continued throughout the antebellum period.  James Oldham and Su Jin Kim describe early American adoption of English models of arbitration, with specific emphasis on the Locke statute, in Pennsylvania and Maryland.  4. Oldham & Kim, Arbitration in America: The Early History, supra note 3; Conklin, Lost Options, supra note 3.  5. See generally Wesley A. Sturges, Common-Law Arbitration and Statutory Arbitration: Problems Arising from Their Coexistence, 46 MINN. LAW. REV. 819 (1961-1962) (discussing the continued exist-ence of common law and statutory arbitration at the state level).  6. 9 U.S.C.§ 1 (2012) 2Journal of Dispute Resolution, Vol. 2016, Iss. 1 [2016], Art. 3https://scholarship.law.missouri.edu/jdr/vol2016/iss1/3No. 1] Beyond the FAA 3 brought together scholars in law and history whose combined works restore breadth and depth to our present-day understanding of and debates about arbitration. Our exploration begins with Margo Todd’s article, “For eschewing of trouble and exorbitant expense”: Arbitration in the Early Modern British Isles.7  Dr. Todd provides valuable insights into binding arbitration in British customary law, arguing that arbitration was favored over litigation in early modern Britain for its community focus, speed, efficacy, and uniformity of procedure.  In her discussion, Dr. Todd also counters prevailing histories on arbitration by providing a fresh and nuanced analysis of Chief Justice Coke’s ruling on arbitration in Vinyor’s case (1609). Francis Boorman takes a close look at Queen Elizabeth I’s use of arbitration to address the disputes stemming from an elite couple’s marital breakdown in Ar-bitration and Elite Honour in Elizabethan England: A Case Study of Bess of Hardwick.8  Dr. Boorman’s essay is important for many reasons, not the least of which are his illumination of the monarch’s promotion of arbitration, and the im-portant role that reconciliation, honor, and ideas about gender played in the resolu-tion of disputes—and the selection of arbitration as a dispute resolution procedure—in sixteenth-century England. Derek Roebuck’s piece, The English Inheritance: What the First American Colonists Knew of Mediation and Arbitration, explores official commissions to mediation and arbitration in seventeenth-century England and private mediations and arbitrations in the same time period, highlighting connections to arbitration in early America.  Professor Roebuck’s article, which he presented at the Symposium Works-in-Progress Conference, will appear in the Fall 2016 edition of the Journal of Dispute Resolution.9 James Oldham’s keynote address, The Historically Shifting Sands of Rea-sons to Arbitrate,10 draws comparisons between arbitration practice in eighteenth-century England and in America, providing a rich historical understanding of key attributes that led disputants to select arbitration over litigation as a means of re-solving their disputes.  As Professor Oldham demonstrates, participants selected arbitration not only for its speed, economy, informality, and finality, but also for its distinct process benefits.  Those benefits included participants’ ability to take part in the selection of the arbitrator, the benefit of arbitrator expertise in the subject matter of the dispute, confidentiality of the process, the ability to conduct discovery (including the production of sworn witness testimony and relevant documentary evidence), and arbitration’s ability to effectively manage and resolve complex cases. The arbitration practices that were prevalent in both England and the mainland British colonies in North America continued as those colonies transitioned into be-coming new American states.  In my article, A Variety of State-Level Procedures, Practices, and Policies: Arbitration in Early America,11 I look to the history of                                                            7. Margo Todd, “For eschewing of trouble and exorbitant expense”: Arbitration in the Early Mod-ern British Isles 2016 J. DISP. RESOL. 7.  8. Francis Boorman, Arbitration and Elite Honour in Elizabethan England: A Case Study of Bess of Hardwick, 2016 J. DISP. RESOL. 19.  9. Derek Roebuck, The English Inheritance: What the First American Colonists Knew of Mediation and Arbitration 2016 J. DISP. RESOL. (forthcoming 2016).  10. James Oldham, The Historically Shifting Sands of Reasons to Arbitrate, 2016 J. DISP. RESOL. 41.  11. Carli N. Conklin, A Variety of State-Level Procedures, Practices, and Policies: Arbitration in Early America, 2016 J. DISP. RESOL. 55. 3Conklin: Beyond the FAA: Arbitration Procedure, Practice, and Policy in HiPublished by University of Missouri School of Law Scholarship Repository, 20164 JOURNAL OF DISPUTE RESOLUTION [Vol. 2016 antebellum Kentucky, New Jersey, and Massachusetts to explore not only how Eng-lish arbitration was adopted by (and adapted to) the British colonies in North Amer-ica and the new American states, but also how that diversity of arbitration policies, procedures, and practices continued to exist at the state level throughout the ante-bellum period. Early American arbitration was reflective not only of English custom and law, but also of the policies and practices of Quakers, who had long utilized arbitration to resolve disputes.  F. Peter Phillips’ article, Ancient and Comely Order: The Use and Disuse of Arbitration by New York Quakers12 provides a terrific overview of that history, shedding light on Quaker arbitration practice in New York from the eighteenth century through the mid-twentieth century.  Phillips identifies key attrib-utes shared by Quaker arbitration and mercantile arbitration—such as maintaining community, applying community-specific standards of conduct to the resolution of disputes, and mutual accountability—arguing that these attributes are distinctive to, and remain essential for, the efficacy of the arbitration process. Imre Szalai takes a historical perspective on the passage of the FAA in his article, Exploring The Federal Arbitration Act Through The Lens Of History.13  Professor Szalai not only describes the historical context within which the FAA was passed, looking at the wide variety of social, political, economic, and military events that influenced its passage, but also explains why that history matters.  Pro-fessor Szalai demonstrates how a rich understanding of the FAA’s history chal-lenges the Supreme Court’s interpretation of the FAA, informs current debates over arbitration, and provides a richer understanding of the role that arbitration plays in the legal system today. Hiro Aragaki also looks to the history of the FAA as he brings new insights to current debates surrounding arbitration in his article, Constructions of Arbitra-tion’s Informalism: Autonomy, Efficiency, and Justice.14  Professor Aragaki ex-plores the historical context surrounding the enactment of the FAA, revealing that arbitration’s primary advantage over litigation at the passage of the FAA was not autonomy or efficiency, which are oft-heralded as arbitration’s primary benefits to-day.  Instead, Professor Aragaki argues that arbitration’s primary advantage over litigation was then—and should still be today—arbitration’s ability to achieve jus-tice. Jill Gross’s article, The Historical Basis of Securities Arbitration as an In-vestor Protection Mechanism,15 brings a historical perspective to securities arbitra-tion, the primary process used by the securities industry to resolve disputes.  Pro-fessor Gross challenges current investor and industry distrust of securities arbitra-tion by revealing the reasons behind the securities industry’s early designation of arbitration for the resolution of investor disputes.  As Professor Gross demonstrates, these reasons include not only speed, efficiency, and fairness, but also, and more                                                            12. F. Peter Phillips, Ancient and Comely Order: The Use and Disuse of Arbitration by New York Quakers, 2016 J. DISP. RESOL. 81.  13. Imre Szalai, Exploring The Federal Arbitration Act Through The Lens Of History, 2016 J. DISP. RESOL. 117.  14. Hiro Aragaki, Constructions of Arbitration’s Informalism: Autonomy, Efficiency, and Justice, 2016 J. DISP. RESOL. 143.  15. Jill Gross, The Historical Basis of Securities Arbitration as an Investor Protection Mechanism, 2016 J. DISP. RESOL. 173. 4Journal of Dispute Resolution, Vol. 2016, Iss. 1 [2016], Art. 3https://scholarship.law.missouri.edu/jdr/vol2016/iss1/3No. 1] Beyond the FAA 5 importantly, arbitration’s unique ability to protect investors, build trust and credi-bility, and thereby encourage investors to use the securities exchanges exchange system. As these articles demonstrate, the history of arbitration is both broad and deep.  It includes the wide variety of reasons that led individuals to choose arbitration in seventeenth- and eighteenth-century Scotland and England, and the ways in which historic English practice was adopted by and adapted to the mainland North Amer-ican colonies and the new United States.  It includes the English monarch encour-aging arbitration to resolve marital disputes, Quakers and merchants utilizing arbi-tration to resolve disputes while preserving community, and the use of arbitration to protect investors in the securities industry.  It involves arbitration under the 1925 Federal Arbitration Act, state-level common law and statutory models of arbitra-tion, and process elements that have attracted an impressive variety of private indi-viduals, consumers, industries, and religious groups to arbitration for centuries.  A broad look at the history of arbitration indicates that individuals and organizations have chosen arbitration to resolve their disputes not only out of a desire for speed, economy, and finality, but also out of a desire for community, expertise, accounta-bility, evidence, credibility, trust, and justice. In short, the history of arbitration is as nuanced and diverse as the reasons why people may choose arbitration to resolve their disputes.  Looking beyond the FAA—to the diversity of arbitration policies, practices, and procedures that existed in the United States before the FAA and to those that have continued or developed since its enactment—provides us with an opportunity to inform our current debates with a more complete (and complex) understanding of this centuries-long legal tra-dition.  I hope you will join us in that pursuit 5Conklin: Beyond the FAA: Arbitration Procedure, Practice, and Policy in HiPublished by University of Missouri School of Law Scholarship Repository, 2016

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Beyond the FAA: Arbitration Procedure, Practice, and Policy in Historical Perspective Symposium: Introduction

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