Arbitrariness

“ I would have been glad to add the additional requirement that no power should be admitted which would not make arbitration reciprocal—that is, no power which, while aiding to arbitrate for others, would not accept arbitration between itself and another power. ”

“ If one party resolves to demand what the other resolves to refuse, the dispute can be determined only by arbitration; and between powers who have no common superiour, there is no other arbitrator than the sword. ”

“ Why, then, borrow trouble where experience has shown that there is no danger of mischief? The most trustworthy compelling power will always be the sense of honor of the parties concerned and their respect for the enlightened judgment of civilized mankind which will watch the proceedings.
We may therefore confidently expect that a permanent system of arbitration will prove as feasible as it is desirable. Nor is there any reason to doubt that its general purpose is intelligently and warmly favored by the best public sentiment both in England and in the United States. ”

“ If, on the contrary, it is the will that commences, and if instinct does but follow it, the free arbitration has no longer to display any rigor, now it must show indulgence. Such is in a few words the law which ought to regulate the relation of the two natures of man in what regards the expression of this relation in the world of phenomena. ”

“ THE universal cry for arbitration is either dishonest or unwise. For every evil there are quack remedies galore—especially for every evil that is irremediable. Of this order of remedies is arbitration, for of this order of evils is the inadequate wage of manual labor. ”

“ We are enquiring what the law is, not what it ought to be. Reason may be applied to shew the impropriety or expedience of a law, but we must have either statute or precedent to prove the existence of it. At the same time, I do not mean to admit that the late resolution of the house of commons is defensible on general principles of reason, any more than in law. ”

“ There are cases in which the interests of a suffering country are, to a vast extent, involved, in which it becomes every man’s paramount duty to speak out and to speak plainly, and to make the ears of the rulers to tingle with the outcry of humanity and justice. [p. 531] I would further apply the spirit of this verse to the case of arbitrators. We have ourselves, it may be, consented to submit a litigated point to arbitration. We do so with a full persuasion of our being in the right—of our claim being the just one. ”

“ How is it when a tribunal of arbitration has studied the case and announced a decision? Though the workmen may be as free to strike as ever, such an action would put them at a fatal disadvantage. The arbitration has given to the public a basis for a judgment as to the equities of the dispute. If the tribunal is one which commands respect, a refusal to abide by its decision puts the men prima facie in the wrong. If they strike now, they reject a rate which is authoritatively pronounced just. ”

“ If you want to ascertain whether your system will stand in all weathers, you must test it when the rule of law and order have replaced that of arbitrary will—when men present themselves, not as the scared recipients of bounty, but as the assertors of admitted rights. ”

“ Some may say that the very thing by which an amicable settlement of differences becomes possible, is the power of legal compulsion known to be in reserve; as people submit to an arbitration because there is a court of law in the background, which they know that they can be forced to obey. ”

“ This talk of arbitration is very fine for the one who is in the wrong. Suppose a set of employees refuse to work any longer unless their wages are doubled. The employer, knowing it means his ruin, refuses, and the strikers demand that the dispute shall be referred to arbitration. ”

“ It would therefore be necessary, in order to legitimise an arbitrary government, that in every generation the people should be in a position to accept or reject it; but, were this so, the government would be no longer arbitrary. ”

“ Thus history teaches the indisputable lesson that arbitration is not only the most humane and economical method of setting international differences, but also the most, if not the only, certain method to furnish enduring results. ”

“ And therefore, as when there is a controversy in an account, the parties must by their own accord set up for right reason the reason of some arbitrator, or judge, to whose sentence they will both stand, or their controversy must either come to blows, or be undecided, for want of a right reason constituted by Nature ”

“ Justice reacted upon logic, sentiment upon reason, by guiding the choice to be made between one logic and another. Reason in its turn reacted upon sentiment by purging it of what is arbitrary, by checking it when it might otherwise Have been extravagant, by relating it to method and order and coherence and tradition. [43] In this conception of the method of logic or philosophy as one organon among several, I find nothing hostile to the teachings of continental jurists who would dethrone it from its place and power in systems of jurisprudence other than our own. ”

“ If it be a condition that a magistrate shall have capacity of arbitration concerning the lawful and the forbidden, that is, knowledge of the principles of Law and their application through analogy—how much more befitting it is for an arbitrator of the universe to be armed with fundamental knowledge of the mental sciences, and the way of deducing results from them. ”

“ And though they are on a larger and more imposing scale in this modern age than before; yet now, as ever, the main body of the movement depends on the deep, silent, strong stream of the tendencies of normal distribution and exchange which 'are not seen' but which control the course of those episodes which 'are seen.' For even in conciliation and arbitration the central difficulty is to discover what is the 7 normal level from which the decisions of the court must not depart far under penalty of destroying their own authority. ”

“ This is to be anticipated in every instance where matters of dispute are made the subject of arbitration under the forms of law. Human judgment is never unerring, and is rarely regarded as otherwise than wrong by the unsuccessful party in the contest. ”

“ Our ordinary disputes about property, are commonly settled by arbitration, where, as well as in court, each party is permitted to state his case, to examine what witnesses and to ask what questions he pleases. ”

“ Who shall I employ as arbiter between us? If I employ some one who takes your view, he will side with you. How can such a one arbitrate between us? If I employ some one who takes my view, he will side with me. ”

“ In form its growth is logical. The official theory is that each new decision follows syllogistically from existing precedents. But just as the clavicle in the cat only tells of the existence of some earlier creature to which a collar-bone was useful, precedents survive in the law long after the use they once served is at an end and the reason for them has been forgotten. The result of following them must often be failure and confusion from the merely logical point of view. ”

“ It is felt, felt now even by nations as well as by individuals, that if a dispute can be settled by arbitration, this is not only cheaper, quicker, and equally satisfactory, but that it is a more generous and Christian way of getting justice done. ”

“ In the last analysis it is for us to determine what is arbitrary or oppressive upon consideration of the natural and inherent principles of practical justice which lie at the base of our traditional jurisprudence and inspirit our Constitution. ”

“ Those submitting to arbitration frequently did so with the mental reservation that the decision to be acceptable must at least approximate the conditions they felt they would be able to establish by a show of strength. ”

“ If, as it looks just at present, the nation is going to believe in arbitration as the general modern method of adjustment, that is, in the all-siding up of a subject, the next thing it will be obliged to believe in will be some kind of an institution of learning which will produce arbitrators, men who have two or three perfectly good, human sides to their minds, who have been allowed to keep minds with three dimensions. ”

“ Then the Forty take the last of the Eponymi of the years of service, and assign the arbitrations to the persons belonging to that year, casting lots to determine which arbitrations each shall undertake; and every one is compelled to carry through the arbitrations which the lot assigns to him. The law enacts that any one who does not serve as Arbitrator when he has arrived at the necessary age shall lose his civil rights, unless he happens to be holding some other office during that year, or to be out of the country. ”

“ How the decisions of this court settling one principle are to be cited as authority for that principle, and at the same time it is to be argued that other decisions, equally unanimous and concurrent, are no authority for another principle, involves a logical dilemma which cannot be solved. ”

“ To divide by an arbitrary line something that cannot be divided is a process that is disturbing to some. Perhaps our deductions are not as inevitable as they are logical, which suggests that they are not "logic." ”

“ Should capital and labor disagree, then the matter in dispute, with all the facts, and before any strike on the part of labor shall occur, shall at once be submitted to arbitration, and the decision of the arbitrators shall be final. ”

“ Amongst all civiliz'd Nations, it has been the constant Endeavour to remove every Thing arbitrary and partial from the Decision of Property, and to fix the Sentence of Judges by such general Views and Considerations, as may be equal to every Member of the Society. ”

“ Industrial arbitration is no better; it is manifestly worse, and any law enforcing it and enforcing compliance with its decisions, is absurd and mischievous. "Compulsory arbitration" is not arbitration, the essence whereof is voluntary submission of differences and voluntary submission to judgment. If either reference or obedience is enforced the arbitrators are simply a court with no powers to do anything but apply the law. ”

“ Besides, those who have first heard the pleas of our adversaries will be more likely to credit the assertions which we are going to make. We shall be less open to the charge of procuring judgement by default. To give a satisfactory decision as to the truth it is necessary to be rather an arbitrator than a party to the dispute. ”

“ In reality, compulsory arbitration is the opposite of any policy which such an authority could pursue either with justice or with hope of success. For it takes for granted the stability of existing relationships and intervenes to adjust incidental disputes upon the assumption that their equity is recognized and their permanence desired. ”

“ We relegated the courts to their narrow field, leaving arbitration to the new expertise. [5]
An arbiter is not of course free 'to dispense his own brand of industrial justice' but is admonished 'to reach a fair solution of a problem' within the letter and spirit of the collective bargaining agreement. ”

“ The following is a concise statement of the rules recommended by the society, in the case of arbitrations.
Each party is to choose one or two friends as arbitrators, and all the persons, so chosen, are to agree upon a third or a fifth. The arbitrators are not to consider themselves as advocates for the party by whom they were chosen, but as men, whose duty it is to judge righteously, fearing the Lord. The parties are to enter into engagements to abide by the award of the arbitrators. Every meeting of the arbitrators is to be made known to the parties concerned, till they have been fully heard. ”

“ That arbitrary government implies the worst of temporary evils, or at least the continual danger of them, is certain. That a man would be pretty equally subject to these evils, under every arbitrary government, is clear. ”

“ But even if it were constitutionally sound, it bears all the marks of that practical inexperience which leads men to believe that arbitration either costs nothing or is at least cheaper than law. Who is to pay for the time of the three arbitrators, presumably men of high professional standing? ”

“ Hence, who—court or arbitrator—has the primary authority to decide whether a party has agreed to arbitrate can make a critical difference to a party resisting arbitration.
We believe the answer to the "who" question (i.e., the standard of review question) is fairly simple. Just as the arbitrability of the merits of a dispute depends upon whether the parties agreed to arbitrate that dispute, see, e.g., Mastrobuono v. ”

“ If by the passage of this simple measure arbitration as a system shall be aided to the slightest extent or advanced in private and public favor, or if it shall serve to attract the thoughtful attention of the people to the subject, much will have been accomplished for the good order of our communities and for the welfare and prosperity of the people. ”

“ Arbitrary rules which were originally well founded have thus been made to yield to changed conditions, and underlying principles are applied to existing methods doing business. The tendencies in most of the American courts are in the same direction. ”

“ Under our decisions, a statutory presumption cannot be sustained if there be no rational connection between the fact proved and the ultimate fact presumed, if the inference of the one from proof of the other is arbitrary because of lack of connection between the two in common experience. ”

“ As there are precedents for everything, he has only to ignore those that make against his interest and accentuate those in the line of his desire. Invention of the precedent elevates the trial-at-law from the low estate of a fortuitous ordeal to the noble attitude of a dirigible arbitrament. ”