Arbitration and Article III

56 Pages Posted: 29 Jul 2007

See all articles by Peter B. Rutledge

Peter B. Rutledge

University of Georgia School of Law

Abstract

This Article forms part of a broader research agenda that studies the relationship between arbitration and constitutional law. Taking its cue from the recent Canadian Softwood Lumber dispute over the constitutionality of NAFTA's dispute resolution boards, this paper asks a broader question: "Why is arbitration compatible with Article III?" Under the traditional account, parties waive their right to an Article III forum, thereby eliminating any Article III issue. Accounts grounded in waiver, however, fail to grapple adequately with the significant structural concerns presented by arbitration. Instead, this paper defends the need for a more robust theory, one that accounts for these structural concerns and can address the novel constitutional challenges presented by a variety of arbitral schemes ranging from domestic employment disputes to international commercial ones. Drawing on appellate review theory, the paper proposes a matrix for assessing the constitutionality of arbitration - an approach that comports with the core principles of the theory and also enhances its explanatory value. The paper concludes by applying this modified appellate review theory to a variety of contexts in arbitration law - including international commercial arbitration and NAFTA arbitration.

Keywords: arbitration, constitution

Suggested Citation

Rutledge, Peter B., Arbitration and Article III. Vanderbilt Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=1003381 or http://dx.doi.org/10.2139/ssrn.1003381

Peter B. Rutledge (Contact Author)

University of Georgia School of Law ( email )

225 Herty Drive
Athens, GA 30602
United States

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