# Wilko v. Swan

> Supreme Court of the United States · December 7, 1953 · 346 U.S. 427

URL: https://www.frixlaw.com/law-library/cases/9421008

## Case

- **Full name:** WILKO v. SWAN Et Al., Doing Business as HAYDEN, STONE & CO., Et Al.
- **Court:** Supreme Court of the United States
- **Decided:** December 7, 1953
- **Citations:** 346 U.S. 427; 74 S. Ct. 182; 98 L. Ed. 2d 168; 98 L. Ed. 168; 1953 U.S. LEXIS 2673
- **Precedential status:** Published
- **Opinion:** Dissent by Frankfurter
- **Judges:** Reed, Jackson, Frankfurter, Min-Ton
- **Cited by:** 1,214 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by Rodriguez De Quijas v. Shearson/American Express, Inc., 490 U.S. 477 (1989).
- Negative treatments: 9
- Distinguished by: 3
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9421008

## How later opinions describe it (automated extraction)

- recognizing that Hall Street overruled “manifest disregard of the law” as an independent basis for vacatur
- recognizing that, even when the evidence is probative, the "overriding policy of excluding such evidence ... is the practical experience that its disallowance tends to prevent confusion of issues, unfair surprise and undue prejudice"
- noting that an Arbitrators’ award “may be made without explanation of their reasons 7 and without a complete record of their proceedings”
- holding that the arbitration of securities claims was forbidden by the grant of exclusive jurisdiction to federal courts in § 22 of the 1933 Act

## Opinion text

Mr. Justice Frankfurter,
whom Mr. Justice Min-ton joins,
dissenting.
If arbitration inherently precluded full protection of the rights § 12 (2) of the Securities Act affords to a purchaser of securities, or if there were no effective means of ensuring judicial review of the legal basis of the arbitration, then, of course, an agreement to settle the controversy by arbitration would be barred by § 14, the anti-waiver provision, of that Act.
There is nothing in the record before us, nor in the facts of which we can take judicial notice, to indicate that the arbitral system as practiced in the City of New York, and as enforceable under the supervisory authority of the District Court for the Southern District of New York, would not afford the plaintiff the rights to which he is entitled. *
The impelling considerations that led to the enactment of the Federal Arbitration Act are the advantages of providing a speedier, more economical and more effec *440 tive enforcement of rights by way of arbitration than can be had by the tortuous course of litigation, especially in the City of New York. These advantages should not be assumed to be denied in controversies like that before us arising under the Securities Act, in the absence of any showing that settlement by arbitration would jeopardize the rights of the plaintiff.
Arbitrators may not disregard the law. Specifically they are, as Chief Judge Swan pointed out, “bound to decide in accordance with the provisions of section 12 (2).” On this we are all agreed. It is suggested, however, that there is no effective way of assuring obedience by the arbitrators to the governing law. But since their failure to observe this law “would . . . constitute grounds for vacating the award pursuant to section 10 of the Federal Arbitration Act,” 201 F. 2d 439, 445 , appropriate means for judicial scrutiny must be implied, in the form of some record or opinion, however informal, whereby such compliance will appear, or want of it will upset the award.
We have not before us a case in which the record shows that the plaintiff in opening an account had no choice but to accept the arbitration stipulation, thereby making the stipulation an unconscionable and unenforceable provision in a business transaction. The Securities and Exchange Commission, as amicus curiae, does not contend that the stipulation which the Court of Appeals respected, under the appropriate safeguards defined by it, was a coercive practice by financial houses against customers incapable of self-protection. It is one thing to make out a case of overreaching as between parties bargaining not at arm’s length. It is quite a different thing to find in the anti-waiver provision of the Securities Act a general limitation on the Federal Arbitration Act.
On the state of the record before us, I would affirm the decision of the Court of Appeals.
Under the rules of the American Arbitration Association, available to the plaintiff under his contract, the procedure for selection of arbitrators is as follows:
The Association submits a list of potential arbitrators qualified by experience to adjudicate the particular controversy. In the City of New York, the list would be drawn from a panel of 4,400 persons, 1,275 of whom are lawyers. Each party may strike off the names of any unacceptable persons and number the remaining in order of preference. The Association then designates the arbitrators on the basis of the preferences expressed by both parties. See “Questions and Answers,” Pamphlet of American Arbitration Association. In short, those who are charged to enforce the rights are selected by the parties themselves from among those qualified to decide.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9421008. Public record. Not legal advice.