Myriam Gilles, ‘Arbitration Exceptionalism’, available at SSRN (27 February 2025). Privatization of traditionally public government functions is all the rage in the second Trump administration. The news is rife with suggestions of privatizing everything from delivering the mail to keeping airplanes aloft to tracking the weather. These developments seem consistent with the Supreme Court’s longtime trends of favoring privatization of their own bread and butter – public adjudication in court. Since 1980, the Court has treated arbitration agreements with special status, pursuing a ‘liberal federal policy favoring arbitration agreements’, while showcasing a hostility to court litigation. Pro-arbitration policies are popular around the world for commercial contracts. But the Supreme Court’s particular flavor of arbitration favoritism has led to a certain American arbitration exceptionalism … (more)
[Pamela Bookman, JOTWELL, 15 July 2025]
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