The Enhanced Arbitration Appeal Amendment: A Proposal to Save American Jurisprudence from Arbitration, Modeled on the English Arbitration Act of 1996
Arbitration, once relegated to commercial parties and disdained by the courts, has realized an expansive place in our adjudicatory regime. Even the local consumer who wishes to exterminate a termite infestation may find herself shunted to arbitration in a dispute with the exterminator. Our modern arbitral system, and its restrictions on judicial review, reveals a simple truth: “Arbitration is power, and courts are forbidden to look behind it.” This Note does not seek to resurrect discarded judicial hostility toward arbitration. This Note does, however, ask lawmakers and practitioners to reinvigorate a suspicion of arbitration—to ask why we send almost any claim to a binding, private, non-precedential resolution, and what effect this practice has on our jurisprudence.