Odd Man Out: A Comparative Critique of the Federal Arbitration Act’s Article III Shortcomings
Arbitration is an issue of considerable national concern. Yet as the Supreme Court continues to broaden the Federal Arbitration Act’s (FAA) “liberal federal policy favoring arbitration agreements,” few viable challenges to the FAA’s expansion remain. One would be hard-pressed to find a doctrinal framework so permissive of delegating judicial power to non-Article III tribunals. Meanwhile, the Justices responsible for the FAA’s modern metastasis continue to vociferously question other congressional delegations of judicial power to non-Article III bodies. Those same Justices have yet to address the potential Article III shortcomings of the Court’s FAA jurisprudence. This Note investigates that analytical incoherence.