Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 29 (1995)

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Cite as: 513 U. S. 265 (1995)

Thomas, J., dissenting

along the lines envisioned by Southland would have displaced an enormous body of state law: Outside of a few States, predispute arbitration agreements either were wholly unenforceable or at least were not subject to specific performance. See generally Note to Williams v. Branning Mfg. Co., 47 L. R. A. (n.s.) 337 (1914) (detailed listing of state cases). Far from being "absolutely certain" that Congress swept aside these state rules, I am quite sure that it did not.

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., 264 U. S. 109, 120-123 (1924).2

To be sure, §§ 3 and 4 of the FAA 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

2 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, 250 F. 935, 937 (CA2 1918), aff'd on other grounds sub nom. The Atlanten, 252 U. S. 313 (1920); Munson v. Straits of Dover S. S. Co., 99 F. 787, 790-791 (SDNY), aff'd, 102 F. 926 (CA2 1900).

293

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