This article explores an overlooked dynamic between arbitration and the more formal court system. As developed in more detail below, this article's thesis is that arbitration can help define and reinforce due process norms applicable in court, and a due process-like norm regarding discovery is beginning to develop. Courts often review arbitration agreements for fairness, and through this judicial review, courts have developed a body of law discussing and defining whether certain procedures (or the lack thereof) violate fairness norms in connection with the resolution of a particular dispute. Through this body of law exploring procedural fairness, one can identify emerging procedural norms, such as a right to discovery in certain situations. Through the procedural creativity and experimentation that occurs in arbitration, and through the judicial review of such arbitral procedures, arbitration creates countless opportunities to explore and define what constitutes the minimum bundle of procedures required for a fair hearing. Part II of this article provides a general overview of arbitration and arbitration procedures. Part III of this article then explores the legal framework supporting arbitration, including how courts review arbitration procedures for fundamental fairness. Part IV concludes with a discussion of how this judicial review of arbitration procedures helps define and reinforce due process norms applicable in courts, particularly with respect to an emerging due process right to discovery.
Imre Stephen Szalai,
A Constitutional Right To Discovery? Creating and Reinforcing Due Process Norms Through the Procedural Laboratory of Arbitration,
15 Pepp. Disp. Resol. L.J.
Available at: https://digitalcommons.pepperdine.edu/drlj/vol15/iss2/4