The proliferation of arbitration: democratic concerns

The last twenty-five years has seen an explosion in the use of arbitration--the private, binding resolution of disputes--as an alternative to the public court system of justice. This phenomenon has garnered widespread scholarly and public debate over the fairness of arbitration and its results. However, largely missed in the scholarly debate are the implications of the displacement by arbitration of the public system of justice. While the arbitral and public forums both provide for resolution of civil disputes, the arbitral forum does not and cannot function in the manner that the public system of justice affords. Arbitration is in fact inimical to democracy. This paper shall demonstrate that the public system of justice does more than resolve disputes. Unlike the arbitral forum, the Court (1) Enhance the rule of law: (2) Engage in advice-giving both to the public and other branches of government: (3) Engage various groups in democratic participation through political mobilization or interest group litigation; (4) Provide an effective means of invalidating and/or a "look-back" upon Congressional policy; (5) Preserves democratic ordering; and (6) Provides a source of legitimacy in an authoritative position necessary to social ordering and compliance. This paper answers the call of Richard Reuben who recently noted that very little scholarly attention has been paid to the relationship between arbitration and democracy.