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This chapter consists of the commentary to, and explanation of, the proposed modern national law of arbitration. It endeavors to elucidate the language of the statutory rules?to reveal the motivation and goals that underlie the proposed law. The observations seek to position the rule in the landscape of the Court's decisional law. In places, the commentary identifies gaps or unresolved issues in the Court's holdings and provides a means of filling the void or repairing incongruities. The revised FAA has the ambition not only of mirroring the essential content of the Court's decisional law on arbitration, but also to innovate and bring the U.S. law of arbitration in line with and transcend the global legal regulation of arbitration. According to the proposed law, ordinary legal capacity includes a basic right to arbitrate. It also establishes federal question jurisdiction for arbitration and a federal law regulating the formation of arbitration contracts.

The Court's decisional law on arbitration is not free of ambivalence. There is a small group of cases in which the Court itself may have engaged in judicial hostility toward arbitration. Wilko v. Swan was the first decision in which the Court questioned the value of arbitration as an adjudicatory methodology. There, it allowed securities regulations to trump arbitral autonomy and depreciated the professional utility of arbitration. Alexander v. Gardner-Denver added civil rights to the list of possible limits on arbitrability, and Commonwealth Coatings required arbitrators to comply with legal standards regarding disclosures. When courts adjudged arbitrators partial, the award became an unenforceable nullity. Thereafter, Volt Information Sciences undermined federalization and Hall Street Associates removed the possibility of party control over vacatur. Finally, Stolt-Nielsen seemed to authorize judicial merits review of awards. Each of these decisions indicated that the Court was reconsidering its favorable position on arbitration.

This chapter discusses the constitutional provisions of Article 22 of the Indian Constitution; judicial prescriptions of procedural safeguards; judicial philosophy in preventive detention cases; the need to review certain aberrations from the commendable judicial philosophy; and executive apathy in enforcing amendments made to Article 22 of the Constitution. Viewed in the right perspective, procedural safeguards incorporated in the Constitution and the decisional law pertaining to them are obviously not meant to let off the hook a detained person, notwithstanding strong grounds of suspicion against him, but to give him a fair chance to make his representation considered.

This chapter advances some counter-arguments against the limited publication regime. There are four such arguments. First, limited publication reduces judicial accountability; second, it lessens judicial responsibility; third, limited publication fundamentally changes the manner in which our decisional law operates; and finally, the burden of limited publication falls most heavily on the poor and disfavored in our society.