REFLECTIONS ON THE NEXUS OF PROCEDURE AND HISTORY: THE EXAMPLE OF MODERN AMERICAN ARBITRATION.

• Author: Kessler, Amalia D.

INTRODUCTION 2401 I. CONTEXTUALIZING THE RISE OF MODERN AMERICAN ARBITRATION 2405 II. CORPORATIST MODELS 2409 III. THE MATERNALIST MODEL 2415 IV. THE COURT-BASED MODEL 2419 CONCLUSION 2422 INTRODUCTION

There is surely no more appropriate context in which to discuss interdisciplinary approaches to civil procedure than in a festschrift honoring Stephen Burbank. In a diverse and expansive set of writings spanning several decades, Burbank has drawn on a wide range of disciplines and methods in approaching key questions of procedure. Masterful at delivering rigorous and precise legal analysis, he has also acquired deep knowledge and sophistication in a range of allied fields, including history and political science. This has enabled him to utilize various qualitative and quantitative methods in pursuit of the deeper social meaning and purposes of the law. As he has insisted, "the technical reasoning required to be a master of doctrine is a necessary condition for... good scholarship about procedure," but "it is not a sufficient condition." (1) For those who "seek to understand law's significance," it is vital to gain "perspectives in addition to the internal logic of technical reasoning" (2)--and these can be supplied only by turning to disciplines beyond the law, "including history, empiricism, and... political science." (3)

Among Burbank's interdisciplinary pursuits, and dear to my own heart, is the study of procedure from a historical perspective. But what precisely does history contribute? Unlike the quantitative methods employed by empiricists and widely embraced as the leading edge of both social science and legal studies today, the historian's toolkit is more amorphous and the ensuing contribution harder to identify. As Burbank's own work powerfully suggests, what history affords, above all else, is much-needed context. As he has often observed, procedure is power, providing the terms and structuring the processes through which decisions of vast individual and social consequence are made. (4) But it is all too easy, "[particularly when the law in question is labeled 'procedure'... to accept a doctrinal question at face value (that is, to regard doctrine as an end in itself)." (5) The unfortunate end result of this tendency, he has cautioned, is "to view such a question apart from the litigation dynamics that it engenders, and otherwise to ignore issues of power that may be at stake in its resolution." (6) It is here that history can be of particular use, revealing the social context that elucidates these vital power dynamics, and thus making clear the stakes of our procedural choices.

As evidenced by Burbank's scholarship, as well as that of others participating in this symposium, historical approaches to procedure are of interest to procedure scholars. But as is true across the legal academy and broader university, enthusiasm for the historical method pales in comparison to that for empirical social science. Among legal scholars, the most obvious exception to that generalization is the relatively small but thriving field of legal history, many of whose participants are not only trained as lawyers, but also hold doctorates in history. But if we look at the work produced by those who identify as legal historians, remarkably little concerns questions of civil procedure and practice. Although legal historical work abounds in such fields as administrative law, labor and employment, and criminal law and procedure, the same cannot be said of civil procedure. (7) Shaped by the realist turn in American approaches to law and legal education, as well as by their training in history, U.S.-based legal historians--unlike their counterparts in much of the rest of the globe--are largely externalist in orientation, eager to focus on the lived experience of the law, rather than its formal trappings. From this perspective, procedure and its technicalities seem far removed from the social and political dynamics believed to matter. But if we take seriously Burbank's repeated insistence that procedure is power, we are left with no small irony. Just as procedure scholars can be tempted to ignore history in their rush to analyze doctrine in its own terms, ignoring the social context that reveals the underlying reality of power, so too many historians--in their pursuit of the social context that proceduralists sometimes ignore--are inclined to ignore procedure. The nexus of procedure and history, where power dynamics play out through the law, is thus all too often neglected, to the ultimate detriment of scholarship in both fields.

As this suggests, we need more histories of procedure. In so arguing, I mean to make not only a quantitative, but also a qualitative point. Our need, in other words, is not only for more books and articles examining the history of procedure, but also for more of the historian's distinctive sensibility in the work that is produced. What precisely is that sensibility? Emerging out of the intersection of critical legal studies and cultural history, the legal historical scholarship produced in the United States over the last several decades has focused on context and contingency. By setting historical events in context, the legal historian reveals the myriad contingencies undergirding past developments, thus shedding light on the often complicated and unpredictable nature of legal and social change--including, not least, the role played by complex dynamics of power. (8) Of late, a number of scholars have grown frustrated with the reigning paradigm, arguing, in the words of Christopher Tomlins, that the embrace of "totalized contingency" has proven a dead end, giving rise to a growing sense of "indeterminacy" and replacing "explanation" with "an aesthetic of 'complexity.'" (9) But despite the rise of such critiques and the call for a new paradigm, one has yet to emerge. Legal historians as a whole remain committed to pursuing context and contingency.

There are, no doubt, many reasons for this persistence--including perhaps, as Tomlins has put it, the fact that the field is "obdurately atheoretical." (10) In addition, however, I suspect that many legal historians doubt that attending to contexts and contingencies necessarily leads to "totalized contingency." Even while tracing particular contingent pathways of development, the legal historian can identify deeper, structural and institutional forces that also shaped past events and that were less subject to possible change. Deployed in this way, the historical focus on context and contingency can have great explanatory force. It is true, to some extent, that a focus on a different set of contexts might shine light on a different set of causes, thus leading us back to the problem of indeterminacy. But the valueadded of history is not that it is a social science that purports to present us with definitive, falsifiable accounts of legal and social development. It is instead an interpretive discipline that opens up new and important lines of inquiry that we might not otherwise even have known to consider.

To call for more of the historian's sensibility in the writing of legal histories of procedure and practice is thus, ultimately, to call for more and broader contextualization. But what exactly does this mean? As I see it, there are three deeply interrelated components to the pursuit of historical contextualization: identifying a broad range of relevant contexts, reading widely in the primary sources (beyond the immediate legislative history of a particular rule or statute of interest), and perhaps most importantly, retaining an imaginative openness to the strangeness of the past. These are not sequential moves that provide a formulaic method or recipe to be systematically applied, but are instead better understood as the constitutive components of an overarching frame of mind. Thus, insight that a particular context ought to be explored might lead the legal historian to examine a broader range of sources than initially contemplated. But so too, reading widely in the sources might bring to light a relevant context that had not previously been considered. And throughout this iterative process of identifying contexts and reading sources, the legal historian must retain a degree of imaginative openness, since without that, potentially relevant contexts and sources might not even be recognized as such.

But this is all far too abstract. To try to make more concrete the ways in which the historian's sensibility might contribute to legal historical scholarship on procedure, I will focus the remainder of my remarks on an example drawn from my current work on the history of modern American arbitration law and practice.

1. CONTEXTUALIZING THE RISE OF MODERN AMERICAN ARBITRATION

   Given the highly contested and ever-expanding practice of binding, mandatory arbitration, arbitration law is one of those subjects in the broader field of civil procedure and practice to which some historical work has in fact been devoted. The work produced to date has taken two main forms. One line of inquiry explores the legislative history of the Federal Arbitration Act of 1925 (FAA). Highlighting the role of commercial interests in lobbying for the statute, this research suggests that these interests envisioned arbitration as a device for resolving commercial disputes between parties of roughly equal bargaining power and never contemplated that it would be deployed, as today, through contracts of adhesion drafted by large corporations and imposed on millions of consumers and employees. (11) A second line of inquiry examines the U.S. Supreme Court's caselaw interpreting the FAA over the decades since the statute was first enacted, emphasizing, in particular, the extent to which the court has refashioned core underpinnings of the legal framework first put into place (including through its own decisions), even while continuing to insist on purported interpretive continuity. (12)

   While...