The New Federal Arbitration Law: A Call to Ethical Practice Not Yet Realized

The 1926 essay about the Federal Arbitration Act (FAA) authored by Julius Henry Cohen and Kenneth Dayton contains numerous insights into the purposes of arbitration, the promise of the FAA, and the intent of Congress in enacting the legislation. But tucked into this essay is also a statement about lawyer self-interest potentially leading them away from counseling clients to draft arbitration clauses or using arbitration services out of risk of earning lower fees. The authors’ predictions were simultaneously right and wrong. The authors incorrectly predicted that lawyers would not counsel their clients to arbitrate. On the other hand, the authors correctly noted that lawyer self-interest would have an effect on arbitration practice. This interest—incorporating litigation techniques into arbitration—is what has the undesirous effects the authors feared. This essay first describes Cohen and Dayton’s concerns about lawyer self-interest, and then discusses how modern practice has fulfilled some of the authors’ predictions and created new ethical problems. Ultimately, this essay endorses returning to the initial intent of the FAA for ethical and practical reasons.