Odd Man Out: A Comparative Critique of the Federal Arbitration Act's Article III Shortcomings

Abstract

Arbitration is an issue of considerable national concern. Yet as the Supreme Court continues to broaden the Federal Arbitration Act’s “liberal federal policy favoring arbitration agreements,” few viable challenges to the FAA’s expansion remain. One would be hard-pressed to find a doctrinal framework so permissive toward the delegation of judicial power to non-Article III tribunals. Meanwhile, the justices responsible for the FAA’s modern metastasis continue to question, quite vociferously, other congressional delegations of judicial power to non-Article III bodies. But those same justices have yet to address the potential Article III shortcomings of the Court’s FAA jurisprudence. Such analytical incoherence is the focus of this Note.

Part I describes the historical judicial disposition toward arbitration in the United States both before the FAA’s passage and in the decades following its enactment. Part II gives an overview of the FAA’s statutory framework, including key decisions that have come to shape it. Part III discusses the failures of past challenges to the FAA, namely Seventh Amendment and unconscionability arguments that litigants have used to avoid arbitration. Part IV develops the heart of this Note with a comparative analysis of the Supreme Court’s scrutiny of statutes and international treaties conferring adjudicatory power upon non-Article III bodies relative to the FAA’s currently untested scheme of delegation. Part V then examines one scholar’s attempt to rescue the FAA from constitutional ruin and argues that such attempts are futile given the institutional interest that Article III serves. Part VI concludes.

Keywords: Federal Arbitration Act, Article III, separation of powers, federalism, arbitration, non-delegation