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Document Type

Article

Publication Date

Summer 2016

Publication Citation

91 Indiana Law Journal 1143 (2016)

Abstract

In recent years, the U.S. Supreme Court has helped transform arbitration law into a radical private-ordering regime in which freedom of contract has come to eclipse public regulation. Arbitration jurisprudence justifies this transformation in part on a profound and longstanding commitment to the ideal of individual autonomy, understood as the freedom—lacking in litigation—to select a disputing process best suited to one’s needs.

In this Article, I question the cogency of this justification. I argue, first, that autonomy has had different and sometimes conflicting meanings even within arbitration jurisprudence. Second, depending on the meaning one ascribes to autonomy, it is at best uncertain whether a commitment to it requires enforcing arbitration agreements with minimal regulation by the state. Ironically, the libertarian interpretation of autonomy that lies at the heart of the Court’s recent arbitration decisions turns out to be the least adept at explaining why arbitration agreements should be “‘rigorously enforce[d]’ . . . according to their terms.” To the extent we wish to continue viewing enforcement as important for the value of autonomy in arbitration, therefore, it appears we must rethink what autonomy means in this context and whether in certain circumstances autonomy may be best promoted by refusing to enforce arbitration agreements.

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