ABSTRACT
With the 40th anniversary of the Supreme Court’s decision in Moses H Cone Memorial Hospital v. Mercury Construction Corp approaching, both judges and commentators are calling for the repeal of the ‘Moses presumption’. This Presumption states that ‘any doubts’ as to the scope of an arbitration agreement are to be resolved ‘in favor of arbitration’. This Article is the first to respond to the growing calls for the Moses Presumption to be eliminating, by rebutting three common critiques directed at the Presumption.
The first critique is that the Moses Presumption has no grounding in the text of the Federal Arbitration Act (FAA). The Article applies established statutory interpretation canons to show not only that the Moses Presumption does not contradict the text of the FAA, but that it is actually narrower than the language of the Act permits.
The second critique is that the Moses Presumption is negated by the legislative history of the FAA. The Article argues that Congress’ motivation for enacting the FAA was to remedy courts’ long-standing hostility towards arbitration agreements by favoring their enforcement. This makes the FAA a remedial statute that should, as all remedial statutes, be interpreted broadly and in the light of the policy that underlies it – the enforcement of valid arbitration agreements.
The third critique is that the Moses Presumption has been unduly expanded by lower courts over the last 40 years. The Article undertakes a detailed examination of federal and state courts’ FAA jurisprudence, which reveals that the Moses Presumption has actually been generally applied by the lower courts narrowly and as envisioned by the Supreme Court.
The Article concludes that calls to reconsider the Moses Presumption are misplaced and should be rejected. The Presumption is firmly rooted in the text and legislative history of the FAA and is crucial for achieving the goals of the Act and safeguarding arbitration as an effective alternative to litigation in the courts.
Meshel, Tamar, In Defense of Moses (March 19, 2022) 96(2) St John’s Law Review (forthcoming, 2022).
First posted 2022-03-24 09:30:05
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