Lead Opinion
delivered the opinion of the Court.
This case concerns the reach of § 2 of the Federal Arbitration Act. That section makes enforceable a written arbitration provision in “a contract evidencing a transaction involving commerce.” 9 U. S. C. § 2 (emphasis added). Should we read this phrase broadly, extending the Act’s reach to the limits of Congress’ Commerce Clause power? Or, do the two italicized words — “involving” and “evidencing” — significantly restrict the Act’s application? We conclude that the broader reading of the Act is the correct one, and we reverse a State Supreme Court judgment to the contrary.
I
In August 1987, Steven Gwin, a respondent who owned a house in Birmingham, Alabama, bought a lifetime “Termite Protection Plan” (Plan) from the local office of Allied-Bruce Terminix Companies, a franchise of Terminix International Company. In the Plan, Allied-Bruce promised “to protect” Gwin’s house “against the attack of subterranean termites,” to reinspect periodically, to provide any “further treatment found necessary,” and to repair, up to $100,000, damage caused by new termite infestations. App. 69. Terminix International “guarantee^] the fulfillment of the terms” of the Plan. Ibid. The Plan’s contract document provided in writing that
“any controversy or claim .. . arising out of or relating to the interpretation, performance or breach of any provision of this agreement shall be settled exclusively by arbitration.” Id., at 70 (emphasis added).
In the spring of 1991, Mr. and Mrs. Gwin, wishing to sell their house to Mr. and Mrs. Dobson, had Allied-Bruce reinspect the house. They obtained a clean bill of health. But no sooner had they sold the house and transferred the Plan to Mr. and Mrs. Dobson than the Dobsons found the house swarming with termites. Allied-Bruce attempted to treat
The Supreme Court of Alabama upheld the denial of the stay on the basis of a state statute, Ala. Code §8-1-41(3) (1993), making written, predispute arbitration agreements invalid and “unenforceable.”
Several state courts and Federal District Courts, like the Supreme Court of Alabama, have interpreted the Act’s language as requiring the parties to a contract to have “contemplated” an interstate commerce connection. See, e. g., Burke County Public Schools Bd. of Ed. v. Shaver Partnership,
II
Before we can reach the main issues in this case, we must set forth three items of legal background.
First, the basic purpose of the Federal Arbitration Act is to overcome courts’ refusals to enforce agreements to arbitrate. See Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ.,
Second, some initially assumed that the Federal Arbitration Act represented an exercise of Congress’ Article III power to “ordain and establish” federal courts, U. S. Const., Art. Ill, § 1. See Southland Corp. v. Keating,
Third, the holding in Prima Paint led to a further question. Did Congress intend the Act also to apply in state courts? Did the Federal Arbitration Act pre-empt conflict
We have set forth this background because respondents, supported by 20 state attorneys general, now ask us to overrule Southland and thereby to permit Alabama to apply its antiarbitration statute in this case irrespective of the proper interpretation of §2. The Southland Court, however, recognized that the pre-emption issue was a difficult one, and it considered the basic arguments that respondents and amici now raise (even though those issues were not thoroughly briefed at the time). Nothing significant has changed in the 10 years subsequent to Southland; no later cases have eroded Southland’s authority; and no unforeseen practical problems have arisen. Moreover, in the interim, private parties have likely written contracts relying upon Southland as authority. Further, Congress, both before and after Southland, has enacted legislation extending, not retracting, the scope of arbitration. See, e. g., 9 U. S. C. § 15 (eliminating the Act of State doctrine as a bar to arbitration); 9 U. S. C. §§201-208 (international arbitration). For these reasons, we find it inappropriate to reconsider what is by now well-established law.
We therefore proceed to the basic interpretive questions aware that we are interpreting an Act that seeks broadly to overcome judicial hostility to arbitration agreements and that applies in both federal and state courts. We must decide in this case whether that Act used language about interstate commerce that nonetheless limits the Act’s application,
Ill
The Federal Arbitration Act, §2, provides that a
“written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U. S. C. §2 (emphasis added).
The initial interpretive question focuses upon the words “involving commerce.” These words are broader than the often-found words of art “in commerce.” They therefore cover more than “‘only persons or activities within the flow of interstate commerce.’” United States v. American Building Maintenance Industries,
After examining the statute’s language, background, and structure, we conclude that the word “involving” is broad
Further, this Court has previously described the Act’s reach expansively as coinciding with that of the Commerce Clause. See, e. g., Perry v. Thomas,
Finally, a broad interpretation of this language is consistent with the Act’s basic purpose, to put arbitration provisions on “ ‘the same footing’ ” as a contract’s other terms. Scherk v. Alberto-Culver Co.,
We recognize arguments to the contrary: The pre-New Deal Congress that passed the Act in 1925 might well have thought the Commerce Clause did not stretch as far as has turned out to be the case. But, it is not unusual for this Court in similar circumstances to ask whether the scope of a statute should expand along with the expansion of the Commerce Clause power itself, and to answer the question affirmatively — as, for the reasons set forth above, we do here. See, e. g., McLain v. Real Estate Bd. of New Orleans, Inc., 444 U. S. 232, 241 (1980); Hospital Building Co. v. Trustees of Rex Hospital,
Further, the Gwins and Dobsons point to two cases containing what they believe to be favorable language. In Mine Workers v. Coronado Coal Co.,
The Gwins and Dobsons, with far better reason, point to a different case, Bernhardt v. Polygraphic Co. of America, Inc.,
The best response to this argument is to point to the way in which the Court reasoned in Bernhardt, and to what the Court said. It said that the reason the Act did not apply to Bernhardt’s contract was that there was
“no showing that petitioner while performing his duties under the employment contract was working ‘in’ commerce, was producing goods for commerce, or was engaging in activity that affected commerce, within themeaning of our decisions.” Id., at 200-201 (emphasis added) (footnote omitted).
Thus, the Court interpreted the words “involving commerce” as broadly as the words “affecting commerce”; and, as we have said, these latter words normally mean a full exercise of constitutional power. At the same time, the Court’s opinion does not discuss the implications of the “interstate” facts to which the respondents now point. For these reasons, Bernhardt does not require us to narrow the scope of the word “involving.” And, we conclude that the word “involving,” like “affecting,” signals an intent to exercise Congress’ commerce power to the full.
IV
Section 2 applies where there is “a contract evidencing a transaction involving commerce.” 9 U. S. C. § 2 (emphasis added). The second interpretive question focuses on the italicized words. Does “evidencing a transaction” mean only that the transaction (that the contract “evidences”) must turn out, in fact, to have involved interstate commerce? Or, does it mean more?
Many years ago, Second Circuit Chief Judge Lumbard said that the phrase meant considerably more. He wrote:
“The significant question ... is not whether, in carrying out the terms of the contract, the parties did cross state lines, but whether, at the time they entered into it and accepted the arbitration clause, they contemplated substantial interstate activity. Cogent evidence regarding their state of mind at the time would be the terms of the contract, and if it, on its face, evidences interstate traffic . . . , the contract should come within §2. In addition, evidence as to how the parties expected the contract to be performed and how it was performed is relevant to whether substantial interstate activity was contemplated.” Metro Industrial Painting Corp.v. Terminal Constr. Co., 287 F. 2d 382 , 387 (1961) (concurring opinion) (second emphasis added).
The Supreme Court of Alabama and several other courts have followed this view, known as the “contemplation of the parties” test. See supra, at 269-270.
We find the interpretive choice difficult, but for several reasons we conclude that the first interpretation (“commerce in fact”) is more faithful to the statute than the second (“contemplation of the parties”). First, the “contemplation of the parties” interpretation, when viewed in terms of the statute’s basic purpose, seems anomalous. That interpretation invites litigation about what was, or was not, “contemplated.” Why would Congress intend a test that risks the very kind of costs and delay through litigation (about the circumstances of contract formation) that Congress wrote the Act to help the parties avoid? See Moses H. Cone Memorial Hospital v. Mercury Constr. Corp.,
Moreover, that interpretation too often would turn the validity of an arbitration clause on what, from the perspective of the statute’s basic purpose, seems happenstance, namely, whether the parties happened to think to insert a reference to interstate commerce in the document or happened to mention it in an initial conversation. After all, parties to a sales contract with an arbitration clause might naturally think about the goods sold, or about arbitration, but why should they naturally think about an interstate commerce connection?
Further, that interpretation fits awkwardly with the rest of § 2. That section, for example, permits parties to agree to submit to arbitration “an existing controversy arising out of” a contract made earlier. Why would Congress want to risk nonenforceability of this later arbitration agreement (even if fully connected with interstate commerce) simply because the parties did not properly “contemplate” (or write
Second, the statute’s language permits the “commerce in fact” interpretation. That interpretation, we concede, leaves little work for the word “evidencing” (in the phrase “a contract evidencing a transaction”) to perform, for every contract evidences some transaction. But, perhaps Congress did not want that word to perform much work. The Act’s history, to the extent informative, indicates that the Act’s supporters saw the Act as part of an effort to make arbitration agreements universally enforceable. They wanted to “get a Federal law” that would “cover” areas where the Constitution authorized Congress to legislate, namely, “interstate and foreign commerce and admiralty.” Joint Hearings 16 (testimony of Julius H. Cohen). They urged Congress to model the Act after a New York statute that made enforceable a written arbitration provision “in a written contract,” Act of Apr. 19,1920, ch. 275, §2,1920 N. Y. Laws 803, 804. Hearing on S. 4213 and S. 4214 before the Subcommittee of the Senate Committee on the Judiciary, 67th Cong., 4th Sess., 2 (1923) (testimony of Charles L. Bern-heimer). Early drafts made enforceable a written arbitration provision “in any contract or maritime transaction or transaction involving commerce.” S. 4214, 67th Cong., 4th Sess., §2 (1922) (emphasis added); S. 1005, 68th Cong., 1st Sess. (1923); H. R. 646, 68th Cong., 1st Sess. (1924). Members of Congress, looking at that phrase, might have thought the words “any contract” standing alone went beyond Congress’ constitutional authority. And, if so, they might have simply connected those words with the later words “transaction involving commerce,” thereby creating the phrase that became law. Nothing in the Act’s history suggests any other, more limiting, task for the language.
Finally, we note that an amicus curiae argues for an “objective” (“reasonable person” oriented) version of the “contemplation of the parties” test on the ground that such an interpretation would better protect consumers asked to sign form contracts by businesses. We agree that Congress, when enacting this law, had the needs of consumers, as well as others, in mind. See S. Rep. No. 536, 68th Cong., 1st Sess., 3 (1924) (the Act, by avoiding “the delay and expense of litigation,” will appeal “to big business and little business alike,... corporate interests [and]... individuals”). Indeed, arbitration’s advantages often would seem helpful to individuals, say, complaining about a product, who need a less expensive alternative to litigation. See, e. g., H. R. Rep. No. 97-542, p. 13 (1982) (“The advantages of arbitration are many: it is usually cheaper and faster than litigation; it can have simpler procedural and evidentiary rules; it normally minimizes hostility and is less disruptive of ongoing and future business dealings among the parties; it is often more flexible in regard to scheduling of times and places of hearings and discovery devices . . .”). And, according to the American Arbitration Association (also an amicus here), more than one-third of its claims involve amounts below $10,000, while another third involve claims of $10,000 to $50,000 (with an average processing time of less than six
We are uncertain, however, just how the “objective” version of the “contemplation” test would help consumers. Sometimes, of course, it would permit, say, a consumer with potentially large damages claims to disavow a contract’s arbitration provision and proceed in court. But, if so, it would equally permit, say, local business entities to disavow a contract’s arbitration provisions, thereby leaving the typical consumer who has only a small damages claim (who seeks, say, the value of only a defective refrigerator or television set) without any remedy but a court remedy, the costs and delays of which could eat up the value of an eventual small recovery.
In any event, § 2 gives States a method for protecting consumers against unfair pressure to agree to a contract with an unwanted arbitration provision. States may regulate contracts, including arbitration clauses, under general contract law principles and they may invalidate an arbitration clause “upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U. S. C. §2 (emphasis added). What States may not do is decide that a contract is fair enough to enforce all its basic terms (price, service, credit), but not fair enough to enforce its arbitration clause. The Act makes any such state policy unlawful, for that kind of policy would place arbitration clauses on an unequal “footing,” directly contrary to the Act’s language and Congress’ intent. See Volt Information Sciences, Inc.,
For these reasons, we accept the “commerce in fact” interpretation, reading the Act’s language as insisting that the “transaction” in fact “involv[e]” interstate commerce, even if the parties did not contemplate an interstate commerce connection.
The parties do not contest that the transaction in this case, in fact, involved interstate commerce. In addition to the multistate nature of Terminix and Allied-Bruce, the termite-treating and house-repairing material used by Allied-Bruce in its (allegedly inadequate) efforts to carry out the terms of the Plan, came from outside Alabama.
Consequently, the judgment of the Supreme Court of Alabama is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
Concurrence Opinion
concurring.
I agree with the Court’s construction of § 2 of the Federal Arbitration Act. As applied in federal courts, the Court’s interpretation comports fully with my understanding of congressional intent. A more restrictive definition of “evidencing” and “involving” would doubtless foster prearbitration litigation that would frustrate the very purpose of the statute. As applied in state courts, however, the effect of a broad formulation of §2 is more troublesome. The reading of § 2 adopted today will displace many state statutes carefully calibrated to protect consumers, see, e. g., Mont. Code Ann. § 27-5-114(2)(b) (1993) (refusing to enforce arbitration clauses in consumer contracts where the consideration is $5,000 or less), and state procedural requirements aimed at ensuring knowing and voluntary consent, see, e. g., S. C. Code Ann. § 15-48-10(a) (Supp. 1993) (requiring that notice of arbitration provision be prominently placed on first page of contract). I have long adhered to the view, discussed below, that Congress designed the Federal Arbitration Act to apply only in federal courts. But if we are to apply the Act in state courts, it makes little sense to read §2 differently in that context. In the end, my agreement with the Court’s construction of §2 rests largely on the wisdom of maintaining a uniform standard.
Were we writing on a clean slate, I would adhere to that view and affirm the Alabama court’s decision. But, as the Court points out, more than 10 years have passed since Southland, several subsequent cases have built upon its reasoning, and parties have undoubtedly made contracts in reli-
Today’s decision caps this Court’s effort to expand the Federal Arbitration Act. Although each decision has built logically upon the decisions preceding it, the initial building block in Southland laid a faulty foundation. I acquiesce in today’s judgment because there is no “special justification” to overrule Southland. Arizona v. Rumsey,
Dissenting Opinion
dissenting.
I have previously joined two judgments of this Court that rested upon the holding of Southland Corp. v. Keating,
I do not believe that proper application of stare decisis prevents correction of the mistake. Adhering to Southland
I shall not in the future dissent from judgments that rest on Southland. I will, however, stand ready to join four other Justices in overruling it, since Southland will not become more correct over time, the course of future lawmaking seems unlikely to be affected by its existence, cf. Pennsylvania v. Union Gas Co.,
For these reasons, I respectfully dissent from the judgment of the Court.
dissenting.
I disagree with the majority at the threshold of this case, and so I do not reach the question that it decides. In my view, the Federal Arbitration Act (FAA) does not apply in state courts. I respectfully dissent.
I
In Southland Corp. v. Keating,
A
Section 2 of the FAA declares that an arbitration clause contained in “a contract evidencing a transaction involving commerce” shall be “valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U. S. C. §2; see also §1 (defining “commerce,” as relevant here, to mean “commerce among the several States or with foreign nations”). On its face, and considered out of context, § 2 draws no apparent distinction between federal courts and state courts. But not until 1959 — nearly 35 years after Congress enacted the FAA — did any court suggest that §2 applied in state courts. See Robert Lawrence Co. v. Devonshire Fabrics, Inc.,
The explanation for this delay is simple: The statute that Congress enacted actually applies only in federal courts. At the time of the FAA’s passage in 1925, laws governing the enforceability of arbitration agreements were generally thought to deal purely with matters of procedure rather than substance, because they were directed solely to the mechanisms for resolving the underlying disputes. As then-judge Cardozo explained: “Arbitration is a form of procedure whereby differences may be settled. It is not a definition of
Indeed, to judge from the reported cases, it appears that no state court was even asked to enforce the statute for many years after the passage of the FAA. Federal courts, for their part, refused to apply state arbitration statutes in cases to which the FAA was inapplicable. See, e. g., California Prune & Apricot Growers’ Assn. v. Catz American Co.,
It is easy to understand why lawyers in 1925 classified arbitration statutes as procedural. An arbitration agreement is a species of forum-selection clause: Without laying down any rules of decision, it identifies the adjudicator of disputes. A strong argument can be made that such forum-selection clauses concern procedure rather than substance. Cf. Fed. Rules Civ. Proc. 73 (district court, with consent of the parties, may refer case to magistrate for resolution), 53 (district court may refer issues to special master). And if a contractual provision deals purely with matters of judicial procedure,, one might well conclude that questions about whether and how it will be enforced also relate to procedure.
The context of §2 confirms this understanding of the FAA’s original meaning. Most sections of the statute plainly have no application in state courts, but rather prescribe rules either for federal courts or for arbitration proceedings themselves. Thus, § 3 provides:
“If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration.” 9 U. S. C. §3 (emphasis added).
Section 4 addresses the converse situation, in which a party breaches an arbitration agreement not by filing a lawsuit but rather by refusing to submit to arbitration:
“A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court which, save for such agreement, would have jurisdiction under title 28, in a civil action or in admiralty of the subject matter of a suit arising out of the controversy between the parties, for an order directing that such arbitration proceed in the manner provided for in such agreement. . . . The court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement.” (Emphasis added.)
The Act then turns its attention to the covered arbitration proceedings themselves, treating the arbitration forum as an extension of the federal courts. Section 7, for instance, provides that the fees for witnesses “shall be the same as the fees of witnesses before masters of the United States courts”; it adds that if a witness neglects a summons to appear at an arbitration hearing,
“upon petition the United States district court for the district in which such arbitrators . . . are sitting may compel the attendance of such person ... or punish said person ... for contempt in the same manner provided by law for securing the attendance of witnesses or their punishment for neglect or refusal to attend in the courts of the United States.”
Likewise, when the arbitrator eventually issues an award, either party (absent contrary directions in the agreement) may apply to “the United States court in and for the district within which such award was made” for an order confirming the award. § 9. The district court may also vacate or modify the award in a few specified circumstances, §§ 10-11, but
Despite the FAA’s general focus on the federal courts, of course, §2 itself contains no such explicit limitation. But the text of the statute nonetheless makes clear that § 2 was not meant as a statement of substantive law binding on the States. After all, if §2 really was understood to “creat[e] federal substantive law requiring the parties to honor arbitration agreements,” Southland, supra, at 15, n. 9, then the breach of an arbitration agreement covered by §2 would give rise to a federal question within the subject-matter jurisdiction of the federal district courts. See 28 U. S. G § 1331. Yet the ensuing provisions of the Act, without expressly taking away this jurisdiction, clearly rest on the assumption that federal courts have jurisdiction to enforce arbitration agreements only when they would have had jurisdiction over the underlying dispute. See 9 U. S. G §§ 3, 4, 8. In other words, the FAA treats arbitration simply as one means of resolving disputes that lie within the jurisdiction of the federal courts; it makes clear that the breach of a covered arbitration agreement does not itself provide any independent basis for such jurisdiction. Even the Southland majority was forced to acknowledge this point, conceding that §2 “does not create any independent federal-question jurisdiction under 28 U. S. C. § 1331 or otherwise.”
The distinction between “substance” and “procedure” acquired new meaning after Erie R. Co. v. Tompkins,
When Justice O’Connor pointed out the FAA’s original meaning in her Southland dissent, see
Even if the interstate commerce requirement raises uncertainty about the original meaning of the statute, we should resolve the uncertainty in light of core principles of federalism. While “Congress may legislate in areas traditionally regulated by the States” as long as it “is acting within the powers granted it under the Constitution,” we assume that “Congress does not exercise [this power] lightly.” Gregory v. Ashcroft,
B
Suppose, however, that the first aspect of Southland was correct: §2 requires States to enforce the covered arbitration agreements and pre-empts all contrary state law. There still would be no textual basis for Southland’s suggestion that §2 requires the States to enforce those agreements through the remedy of specific performance — that is, by forcing the parties to submit to arbitration. A contract surely can be “valid, irrevocable, and enforceable” even though it can be enforced only through actions for damages. Thus, on the eve of the FAA’s enactment, this Court described execu-tory arbitration agreements as being “valid” and as creating “a perfect obligation” under federal law even though federal courts refused to order their specific performance. See Red Cross Line v. Atlantic Fruit Co.,
To be sure, §§3 and 4 of the FA A require that federal courts specifically enforce arbitration agreements. These provisions deal, respectively, with the potential plaintiffs and the potential defendants in the underlying dispute: § 3 holds
Alabama law brings these issues into sharp focus. Citing “public policy” grounds that reach back to Bozeman v. Gilbert,
Rather than attempting to defend Southland on its merits, petitioners rely chiefly on the doctrine of stare decisis in urging us to adhere to our mistaken interpretation of the FAA. See Reply Brief for Petitioners 3-6. In my view; that doctrine is insufficient to save Southland.
The majority (ante, at 272-273) and Justice, O’Connor (ante, at 283-284) properly focus on whether overruling Southland would frustrate the legitimate expectations of people who have drafted and executed contracts in the belief that even state courts will strictly enforce arbitration clauses. I do not doubt that innumerable contracts containing arbitration clauses have been written since 1984, or that arbitrable disputes might yet arise out of a large proportion of these contracts. Some of these contracts might well have been written differently in the absence of Southland. Still, I see no reason to think that the costs of overruling South-land are unacceptably high. Certainly no reliance interests are involved in cases like the present one, where the applicability of the FAA was not within the contemplation of the parties at the time of contracting. In many other cases, moreover, the parties will simply comply with their arbitration agreement, either on the theory that they should live up to their promises or on the theory that arbitration is the cheapest and best way of resolving their dispute. In a fair number of the remaining cases, the party seeking to enforce an arbitration agreement will be able to get into federal court, where the FAA will apply. And even if access to federal court is impossible (because § 2 creates no independent basis for federal-question jurisdiction), many cases will arise in States whose own law largely parallels the FAA. Only Alabama, Mississippi, and Nebraska still hold all executory arbitration agreements to be unenforceable, though some other States refuse to enforce particular classes of such agreements. See Strickland, The Federal Arbitration Act’s Interstate Commerce Requirement: What’s Left for State
Quoting Arizona v. Rumsey,
But suppose that stare decisis really did require us to abide by Southland’s holding that § 2 applies to the States. The doctrine still would not require us to follow Southland’s suggestion that §2 requires the specific enforcement of the arbitration agreements that it covers. We accord no prece-dential weight to mere dicta, and this latter suggestion was wholly unnecessary to the decision in Southland. The arbitration agreement at issue there, if valid at all with respect to the particular claims in dispute, clearly was subject to specific performance under state law; indeed, the state trial court had already compelled arbitration for all the other claims raised in the complaint. See Southland,
Because I believe that the FAA imposes no such obligation on state courts, and indeed that the statute is wholly inapplicable in those courts, I would affirm the Alabama Supreme Court’s judgment.
Notes
See also, e. g., Atlantic Fruit Co. v. Red Cross Line,
The prevalent view that arbitration statutes were purely procedural does conflict with this Court’s reasoning in Red Cross Line v. Atlantic Fruit Co.,
At the time, indeed, federal courts would award only nominal damages for the breach of such agreements. See Aktieselskabet Korn-Og Foderstof Kompagniet v. Rederiaktiebolaget Atlanten,