Arbitration and the Constitution

Faculty Division and the American Enterprise Institute

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Arbitration and the ConstitutionContractual provisions requiring that disputes be resolved through arbitration are everywhere, from employment, credit card, and insurance contracts to sovereign bonds. Some provisions even restrict class-action lawsuits and class arbitration. The Supreme Court has no fewer than three arbitration cases on its docket this term, and the Consumer Financial Protection Bureau has been charged with devising regulations governing arbitration clauses. Yet arbitration’s popularity continues to grow.

Although arbitration implicates federalism, separation of powers, and due process, the Supreme Court has not constitutionalized most aspects of the rules surrounding the resolution technique.  In his new book “Arbitration and the Constitution” (Cambridge University Press, November 2012), University of Georgia Law Professor Peter Rutledge considers how constitutional values nonetheless shape arbitration though subtle means such as treaties, statutory interpretation, and private norms.  Join the Federalist Society and AEI for a conversation about the Court’s approach, Rutledge’s theory, and various ongoing controversies surrounding arbitration.


  • Prof. James Chen, Louis D. Brandeis School of Law
  • Prof. Peter "Bo" Rutledge, University of Georgia School of Law
  • Mr. John Vail, Center for Constitutional Litigation
  • Moderator: Prof. Michael S. Greve, George Mason University School of Law and AEI
  • Introduction: Hon. Lee Liberman Otis, Senior Vice President & Faculty Division Director, The Federalist Society