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- Title
Arbitration and Article III.
- Authors
Rutledge, Peter B.
- Abstract
This Article is 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 Article asks a broader question: Why is arbitration compatible with Article III? Under the traditional account, when parties chose to arbitrate, they 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. This Article 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 Article proposes a bipolar 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 Article concludes by applying this modified appellate review theory to a variety of contexts in arbitration law, including international commercial arbitration and NAFTA arbitration.
- Subjects
NORTH American Free Trade Agreement; ARBITRATION (Administrative law); CONSTITUTIONAL law; FEDERAL court decisions; LEGISLATION; ARBITRATORS; FEDERAL courts; INVESTMENT policy; JURISPRUDENCE
- Publication
Vanderbilt Law Review, 2008, Vol 61, Issue 4, p1189
- ISSN
0042-2533
- Publication type
Article