Author: George A. Bermann
Published: May 2013
Arbitration and the Constitution, by Peter B. Rutledge. Cambridge University Press, 2013. Pp. 208.
Arbitration and the Constitution, as Peter (“Bo”) Rutledge correctly states, give all appearances – or at least traditionally have done so – of being worlds apart. At least in its international commercial iteration, arbitration concerns the resolution of essentially private disputes, the main exception being arbitration arising out of a contract with a State or one of its instrumentalities. (The advent of investor-State arbitration has of course made major inroads into this assumption.)
Though the public law/private law divide has much less traction in the United States than elsewhere, constitutional law is nevertheless the proverbial public law field. How are the organs of government arranged, both horizontally (“separation of powers”) and vertically (‘federalism”)? What rights may private parties, whether in the name of life, liberty, property or some other interest, assert against the government? Arbitration would seem to have little to do with any of this.
Of course, the “wall,” as Rutledge describes it, is no longer a stable one, if ever it was. And the task Rutledge sets for himself is precisely to identify the “fissures” that have developed in that wall and the “seepages” that those fissures allow. In fact, no plausible constitutional law angle escapes Rutledge’s attention. In the compass of a highly readable volume of barely over 200 pages, Rutledge visits every interface between arbitration and the Constitution, at least in the United States. (Rutledge makes no pretense of examining the problem in a more broadly comparative law fashion, but suggests that others pick up where he has left off.)