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At an AEI event on Tuesday, University of Georgia Law professor Peter Rutledge discussed how the wall separating arbitration law and constitutional law is not as impenetrable as it once was. He noted that arbitration decisions were not enforceable by law until 1925, and arbitration agreements were largely irrelevant for 50 years after that. However, constitutional principles have more recently "seeped" their way into arbitration law. Pointing to examples from judicial review, federalism, and the due process clause, Rutledge explained that this cross-fertilization has fostered an essential dialogue between courts and stakeholders.
Louis D. Brandeis School of Law professor James Chen and the Center for Constitutional Litigation's John Vail then offered insightful responses to and critiques of Rutledge's work. Chen weighed in on the importance of consent theory and discussed how a literal interpretation of Articles II and III of the Constitution could cause the legal system to break down. Vail ultimately took issue with Rutledge's assumption that arbitration is "essentially" a private matter, discussing the broader relationships between law and the public domain.
Contractual 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 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 through 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.
If you are unable to attend, we welcome you to watch the event live on this page. Full video will be posted within 24 hours.
Lee Liberman Otis, Federalist Society
Peter Rutledge, University of Georgia School of Law
John Vail, Center for Constitutional Litigation
James Chen, Louis D. Brandeis School of Law
Question and Answer Session
Michael S. Greve, George Mason University School of Law and AEI
For more information, please contact Brad Wassink at firstname.lastname@example.org, 202.862.7197.
For media inquiries, please contact MediaServices@aei.org, 202.862.5829.
James Chen served as dean of the Louis D. Brandeis School of Law at the University of Louisville from 2007–12. Chen’s work focuses on administrative law, agricultural law, constitutional law, economic regulation, environmental law, industrial policy, legislation, and natural resources law. He provides expert advice on the law of regulated industries, particularly telecommunications. Chen has also taught courses in criminal law and food and drug law. From July 1993 to January 2007, Chen taught at the University of Minnesota Law School. In his final years at Minnesota, Chen served as that school's associate dean. He clerked for Judge J. Michael Luttig of the US Court of Appeals for the Fourth Circuit and for Justice Clarence Thomas of the US Supreme Court.
Michael S. Greve joined the law school faculty at George Mason University in fall 2012 after having served as John G. Searle Scholar at AEI, where he specialized in constitutional law, courts, and business regulation and served as chairman of the Competitive Enterprise Institute. Before joining AEI, Greve was founder and codirector of the Center for Individual Rights, a public-interest law firm specializing in constitutional litigation. Greve has served as an adjunct professor at a number of universities, including Cornell University and Johns Hopkins University, and has been a visiting professor at Boston College since 2004. A prolific writer, Greve is the author of nine books and a multitude of articles appearing in scholarly publications, as well as numerous editorials, short articles, and book reviews.
Lee Liberman Otis is the senior vice president and faculty division director at the Federalist Society. Otis clerked for Judge Antonin Scalia of the US Court of Appeals, served as a special assistant at the US Department of Justice under Attorneys General William French Smith and Edwin Meese, and returned to clerk for Justice Scalia after his appointment to the US Supreme Court. Otis then joined George Mason University School of Law as an assistant professor, where she taught Constitutional Law, Federal Courts, Appellate Advocacy, and Legislation. She went on to serve as associate counsel to President George H.W. Bush; to practice appellate litigation at the Washington, DC, office of Jones, Day, Reavis and Pogue; and to serve as chief counsel to the Immigration Subcommittee of the Senate Judiciary Committee, general counsel of the US Department of Energy, and, most recently as associate deputy attorney general at the Department of Justice.
Peter Rutledge is a professor of law whose teaching and research interests include international dispute resolution, arbitration, international business transactions, and the Supreme Court. He regularly advises parties on matters of international dispute resolution (litigation and arbitration). He has received awards in the majority of his years teaching law, including, most recently, the 2009 John C. O'Byrne Award for Furthering Faculty-Student Relations. Before teaching, Rutledge clerked for Justice Clarence Thomas on the US Supreme Court and for Chief Judge J. Harvie Wilkinson III on the US Court of Appeals for the Fourth Circuit. He practiced at Wilmer Cutler & Pickering (now Wilmer Cutler Pickering Hale and Dorr), where his practice included international dispute resolution and Supreme Court matters. He also practiced at Freshfields Bruckhaus Deringer, where his practice concentrated on international arbitration.
John Vail is vice president and senior litigation counsel at the Center for Constitutional Litigation (CCL). Vail is an accomplished appellate lawyer with experience representing plaintiffs in precedent-setting cases before trial and appellate courts nationwide. Subjects addressed by his litigation include mandatory arbitration, civil procedure, federal jurisdiction, state and federal constitutional law, complex civil litigation, and public-interest law. From 2005–10, Vail was president of the American Civil Liberties Union of Virginia. In addition, Vail has served as Professorial Lecturer in Law at the George Washington University Law School. Before joining CCL, Vail worked with legal aid organizations in Tennessee, New Mexico, and North Carolina, including as project director, and at the Centre for Defense of Human Rights in Budapest, Hungary.