Cite as: 513 U. S. 265 (1995)
Thomas, J., dissenting
the rights and wrongs out of which differences grow." Berkovitz v. Arbib & Houlberg, Inc., 230 N. Y. 261, 270, 130 N. E. 288, 290 (1921) (holding the New York arbitration statute of 1920, from which the FAA was copied, to be purely procedural).1 It would have been extraordinary for Congress to
1 See also, e. g., Atlantic Fruit Co. v. Red Cross Line, 276 F. 319, 323 (SDNY 1921) ("Arbitration statutes or judicial recognition of the enforceability of such provisions do not confer a substantive right, but a remedy for the enforcement of the right which is created by the agreement of the parties"), aff'd, 5 F. 2d 218 (CA2 1924); Cohen & Dayton, The New Federal Arbitration Law, 12 Va. L. Rev. 265, 276 (1926) ("[W]hether or not an arbitration agreement is to be enforced is a question of the law of procedure and is determined by the law of the jurisdiction wherein the remedy is sought. That the enforcement of arbitration contracts is within the law of procedure as distinguished from substantive law is well settled by the decisions of our courts" (footnote omitted)); Baum & Pressman, The Enforcement of Commercial Arbitration Agreements in the Federal Courts, 8 N. Y. U. L. Q. Rev. 428, 430 (1931) (referring uncritically to "the prevalent notions that arbitration legislation affects merely the remedy or procedural aspects and not substance"); 2 J. Beale, Conflict of Laws 1245-1246 (1935) ("American courts, without exception, hold that arbitration agreements pertain to remedy or procedure. Consequently, the law of the for[u]m determines their enforceability . . ." (footnote omitted)); cf. Alexandria Canal Co. v. Swann, 5 How. 83, 87-88 (1847) (whether a court should grant the parties' motion to refer a lawsuit to a panel of arbitrators, and then should enter judgment on the arbitrators' award, was "not [a question] upon the rights of the respective parties, but upon the mode of proceeding by which they were determined," and hence was governed by the law of the forum).
The prevalent view that arbitration statutes were purely procedural does conflict with this Court's reasoning in Red Cross Line v. Atlantic Fruit Co., 264 U. S. 109 (1924), a case that in other respects undermines Southland's position. See infra, Part I-B. Without analyzing the question, our opinion in Red Cross Line assumed that the threshold validity of an arbitration agreement (like the validity of other sorts of contracts) is a matter of "substantive" law. See 264 U. S., at 122-123. But our actual holding—that the remedies available to enforce a valid arbitration agreement do not involve "substantive" law, see id., at 124-125—was perfectly consistent with the customary view. As discussed below, moreover, the FAA's text clearly reflects Congress' view that the statute it enacted was purely procedural.
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