I. Introduction

Late in 2015, following a number of highly scrutinized U.S. Supreme Court decisions concerning arbitration,[1] the New York Times published a series of articles criticizing consumer and employment arbitration as a pervasive and insidious means of robbing ordinary citizens of their substantive and procedural rights and creating a private form of justice that violates common conceptions of fairness and due process.[2] Although the articles were condemned by arbitration scholars as incomplete and often inaccurate representations of arbitration, particularly in light of numerous empirical studies regarding user satisfaction with arbitral processes and the fairness of arbitral outcomes,[3] the series nevertheless succeeded in reinvigorating the specter of arbitration as a form of “rough” or “second class justice”[4] and inspired politicians to vow to cure the abuses of arbitration, particularly in consumer and employment matters.[5]

Popular criticism of certain arbitral practices stands in stark contrast to the emphatic pro-arbitration policy adopted by the judiciary in recent decades.[6] Numerous court decisions, including seven opinions from the U.S. Supreme Court in the last five years alone, have reiterated the view that arbitration constitutes a critical component of the U.S. system of justice.[7] While skeptics might argue that the judiciary’s ongoing support for arbitration is driven by economic concerns involving overcrowded and underfunded judicial dockets, it is at least equally possible, based on various empirical and policy studies, that consumer and employment arbitration provide useful benefits to individuals and society at large.[8]

The problem with the current situation is that it appears to have reached an impasse, with little common ground between the two sides and little respect paid to empirical research.[9] These types of debates can be very difficult to resolve through conventional means and can in fact be further inflamed by well-meaning efforts to correct the record.[10] This Article therefore adopts a novel interdisciplinary approach to questions relating to the quality and nature of arbitral justice, focusing in particular on those features, such as the absence of counsel, the lack of an appeal, and the use of relatively informal procedures, that are said to mark arbitration as both distinctly different than, and inferior to, litigation.[11]

Methodologically, the discussion undertakes a comparative historical analysis that seeks to identify whether and to what extent consumer and employment arbitration uphold the fundamental principles of the common law by acting as a type of early common law court.[12] In so doing, the analysis follows Edward Glaeser and Cass Sunstein’s advice to address pervasive political misperceptions by identifying “surprising validators,” meaning respected sources that would not normally be expected to advance the argument in question.[13] In this case, resorting to a historical, judicial analysis may prove particularly persuasive to those who look to the past to justify their opposition to arbitration.[14]

The Article proceeds as follows. First, Part II outlines the methodology adopted in this study because it is impossible to evaluate the validity of comparative research without a proper understanding of the techniques used to generate the data and the conclusions derived therefrom. Next, Part III undertakes the core analysis by comparing specific practices and procedures involving the two legal systems under discussion: consumer and employment arbitration in the United States and the early common law courts in England. Part III focuses on several particular questions, including how the two systems address matters relating to jurisdiction, procedure, creation of precedent and written outcomes, and the finality of the proceeding. Finally, Part IV ties together the various strands of thought and provides several forward-looking observations for future research.

Before beginning, it is useful to note the scope of the current analysis. First, this Article does not consider the history of arbitration per se, although there are a number of interesting discoveries that have been made in recent years,[15] including evidence suggesting that some early American legislators believed that parties should prefer arbitration over litigation because arbitration was not prone to the same abusive processes that were seen in court.[16] While these issues are beyond the reach of the current discussion, hopefully the analysis contained in this Article will lead readers to some of these other works so that they may undertake a more robust debate about the relationship between litigation and arbitration in both historical and contemporary settings.

Second, this Article is limited to two types of domestic arbitration that are at the center of recent political and journalistic debate: consumer arbitration and employment arbitration.[17] Although other forms of arbitration—most notably investor-state (investment) arbitration—have also been subject to criticism in recent years, those procedures are excluded from this study because they cannot be characterized as “second-class justice.”[18] To the contrary, international commercial arbitration and investment arbitration are better described as “‘Rolls Royce’ justice” due to the complexity and sophistication of their procedures.[19] Indeed, criticisms of international arbitration do not typically raise concerns about too little procedural formality, as is the case with consumer and employment arbitration, but instead focus on whether there is too much formality.[20]

II. Methodology

This Article adopts a technique known as “applied legal history” as a means of comparing practices and procedures in contemporary arbitration with practices and procedures in early common law courts.[21] This approach provides a new perspective to questions about the legitimacy of arbitration and offers judges, legislators and reformers important insights into “their own tacit presuppositions, and lay[s] the groundwork for effective communication” going forward.[22] In so doing, this Article seeks to challenge a number of preconceptions about litigation and arbitration, thereby destabilizing the current debate[23] and challenging the perceived need for isomorphism in dispute resolution.[24]

Adopting a comparative historical approach is not without its risks, given recent criticisms of legal history as a scholarly and practical endeavor.[25] Although many of the methodological concerns arise as a result of the current emphasis on originalism as a means of interpreting the U.S. Constitution,[26] arbitration has come in for its own share of criticism. For example, the late Ian Macneil argued that courts construing arbitration statutes

use[] the artifacts of the history of the [Federal Arbitration Act] in building their arguments just as a mason uses stone in building a stone wall – picking ones that are useful, ignoring ones that are not, discarding troublesome ones, chipping away offensive spurs on otherwise useful pieces, twisting and turning each stone until it best fits, and above all, covering up the chinks and defects with a mortar of words. In short, the legislative history in [Southland v. Keating, one of the leading decisions in arbitration law,] is typical judicial legal “history”; it is advocacy, not history. The result is pathological history.[27]

The current discussion attempts to avoid these types of historiographical errors in several ways.[28] First, this Article does not intend to use the past as a means of restricting contemporary legal practice or procedures, which should eliminate the type of problems associated with advocacy-oriented originalism.[29] Instead, the analysis looks to early common law courts as a means of understanding whether and to what extent contemporary arbitral policies and procedures can be considered legitimate as a matter of natural justice.[30] “Natural justice” is a term used in England to describe what might be considered “due process” or “procedural fairness” in the United States, but is somewhat more apt in the current discussion because the concept of due process is often linked in the United States to various principles of constitutional law that may or may not apply in the arbitral setting.[31]

Second, this Article adopts a functional methodology similar to that used in comparative law,[32] although in this case the comparisons are not between different systems of national law but between different conceptions of law, separated by time[33] and by a longstanding (but perhaps inappropriate) distinction between public and private forms of justice.[34] This approach is apposite given statements by eminent comparatists Konrad Zweigert and Hein Kötz that “[l]egal history and comparative law are much of a muchness” and “there is no doubt that the legal historian must often use the comparative method.”[35] Indeed, the father of English legal history, F.W. Maitland, explicitly noted that “[h]istory involves comparison.”[36]

The functional method is relatively straightforward. First, researchers seek to “find in a foreign system the rules which are functionally equivalent to those” in the “home” legal system.[37] Although comparatists first limited themselves to comparing similar bodies of substantive law in different nation-states, scholars have recognized that “[t]he law of a given country . . . is not a unified system but an amalgam of solutions to problems faced in the past.”[38] As a result, a legal system can be broken down into individual problems so as to compare solutions that have come from different times or places.[39]

The solutions to the various problems may be called by different names or may arise through different operations of law; these superficial distinctions are irrelevant so long as the practices or procedures under analysis operate in a functionally similar manner.[40] Thus, for example, the role of discovery (disclosure) in common law litigation is fulfilled by shifting the burden of proof or the use of negative inferences in civil law litigation.[41] The mechanisms operate in different ways and are found in different areas of the law but fulfill the same function by not allowing a wrongdoer to prosper by destroying or hiding evidence and information that would normally be unavailable to the victim.[42]

Adopting the functionalist method in the current study makes sense because arbitration and litigation use relatively similar procedures to achieve relatively similar goals.[43] Although some differences in terminology may arise (for example, the outcome of an arbitral proceeding is called an award, while the outcome of a judicial proceeding is called a decision (at the trial level) or an opinion (at the appellate level)), looking past the nomenclature to the function of the procedure will ensure proper analysis.[44]

After completing a comparative analysis, researchers must critically evaluate the findings to determine whether and to what extent any normative conclusions can be identified.[45] Sometimes one approach will seem better or worse, and sometimes the two systems will seem equally legitimate.[46] In evaluating the two systems, the comparatist uses the same criteria as any other lawyer who has to decide between competing alternatives.[47] For example, a researcher might focus on fairness, efficiency, predictability, or some other feature that is relevant to the question at hand.[48]

When conducting a comparative study, it is important to choose the right legal systems. Traditionally, comparatists have focused on different national legal orders or on “legal families,” which can be defined as national systems derived from different legal traditions (such as the common law legal tradition or the civil law legal tradition).[49] However, arbitration can also be characterized as a “legal system,” albeit a private rather than public one.[50] Indeed, the largely self-contained nature of arbitration makes it eminently suitable for comparative study.[51]

Although courts and commentators often describe arbitration as a single monolithic entity, different types of arbitration can vary quite significantly from one another.[52] This Article focuses on consumer and employment arbitration, which are not identical but are similar enough as a matter of policy, procedure, and practice to constitute a single legal system for purposes of the current study.[53] While some of the conclusions reached herein may apply equally to other types of arbitration (such as securities arbitration or labor arbitration), those procedures are beyond the scope of the current analysis.

The second legal system under consideration involves early common law courts, meaning judicial practices and procedures developed in England during the medieval period (587–1485 C.E.).[54] Although this is a relatively broad span of time, this decision is appropriate for several reasons. For example, the scarcity of written legal materials from the period requires a relatively expansive approach.[55] Furthermore, the methodological technique adopted here takes into account the fluid, evolutionary nature of the common law.[56] Indeed, legal historians frequently consider relatively broad time periods (i.e., a century or more) in scholarship involving early England.[57]

Using the early common law as a comparator is also appropriate because many eminent legal thinkers ranging from Blackstone to Thomas Jefferson frequently looked to this historical period for guidance.[58] Interest in the early common law was due not only to the common law’s endurance from time immemorial but also to the widespread and continuing acceptance of its fundamental precepts.[59] Indeed, Jefferson himself argued

that the common law derived from the ancient, pre-Magna Carta past, and . . . attempted to persuade American jurists that it would be inappropriate to consider the opinions of recent British judges as relevant authority on the dictates of the common law . . . because recent English interpreters had introduced corruptions into the common law itself.[60]

Other eminent thinkers, including Sir Frederick Pollock, also noted the need to return to the earliest periods to avoid the possibility of being “misled by plausible but incorrect explanations of [the law], such as have been current in Blackstone’s time and much later.”[61] Because “wrong ancient history may lead to the declaration of wrong modern law,” Pollock thought it best to “trace a rule or doctrine to its earliest known form . . . .”[62]

Of course, using the early common law as a comparator does have a number of disadvantages. Not only are there relatively few materials dating back to that era,[63] but the early common law is relatively complex as a conceptual matter.[64] For example, the notion of “the common law” encompasses a number of different elements, including “a particular arrangement of institutional authority—including a distribution of power between judge and jury and between common law courts and those of equity”; “a certain set of procedures and their relation to . . . what we would designate substantive principles”; “a particular . . . relation to judicial precedent”; and “a justification for legal authority in the form of appeals to the ‘ancient constitution.’”[65] However, conceptual complexity does not bar comparative analysis, and several of these features will be discussed in the current study.[66]

In any comparative study, researchers must protect against the possibility of implicit bias.[67] This risk exists not only in studies that compare two different legal systems, but also in studies that compare two different time periods, because researchers are often prone to an unconscious preference for their own system.[68]

David Millon has written about this phenomenon, noting that “[m]uch of the best legal history of premodern England rests on implicit but largely unexamined assumptions about the theoretical foundations of the common law.”[69] These assumptions can reflect a bias towards contemporary forms of legal positivism, which are based on the notion of law as a system of rules that are “articulated and administered by agents of the state and in that sense are ‘official.’”[70] This type of cognitive distortion can arise not only in historical research but also in scholarly studies of arbitration, where a state-centric bias can also be perceived.[71]

Professor Millon “question[ed] the validity of positivist assumptions about the premodern common law and suggest[ed] instead that a basically different conception of the role of official substantive rules lay at the theoretical foundation of the premodern system.”[72] As a result, taking “a fresh look at aspects of premodern procedure as evidence of what the English thought about the role of official rules in the common law system” provides important insights not only into “the theoretical and ideological foundations” of the early common law, but also into contemporary forms of arbitration.[73]

III. A Comparison of Early Common Law Courts and Contemporary Arbitration

Although some comparative methodologies (such as contextualism) require a comprehensive analysis of every aspect of the legal systems under scrutiny, functionalism allows a narrower focus.[74] Indeed, functionalism is often used to investigate single, discrete issues to determine how different societies handle a particular problem.[75] This study therefore considers how two different legal systems—consumer and employment arbitration in the United States and early common law courts in England—resolve disputes, focusing on four specific issues: jurisdiction, internal procedures, creation of precedent and rendering of written outcomes, and enforcement of final outcomes. Each of these issues is considered separately in turn.

A. Jurisdiction

Although critics often decry the so-called mandatory nature of modern consumer and employment arbitration, those procedures still arise as a matter of contract and thus require some degree of consent, even if the weaker parties—i.e., consumers and employees—are unable to individually negotiate the terms of either the substantive contract or the arbitration agreement contained therein.[76] This type of contract-based jurisdiction can be and often is contrasted with the residual or default jurisdiction residing in contemporary courts, a process that can and perhaps does lead to an unconscious bias in favor of litigation.[77] However, it is useful to consider how early common law courts considered questions of jurisdiction to determine whether modern notions of jurisdiction are creating a false or inappropriate dichotomy between litigation and arbitration.

1. Jurisdiction and the Early Common Law Courts.

It is unfathomable to the modern mindset to characterize national courts as anything other than the legal default for resolution of civil disputes, given the view that access to justice requires a free, open, and public means of addressing legal injuries.[78] However, the access to justice movement, which includes three distinct waves (financial access to justice, substantive access to justice, and procedural access to justice), is of relatively recent vintage, having only arisen in the years following World War II.[79] Arbitration, which became increasingly common in the United States in the 1980s following the Pound Conference on the Causes of Popular Dissatisfaction with the Administration of Justice (Pound Conference) convened by Chief Justice Warren Burger in 1976, is often characterized as falling within the third wave.[80]

Given that the concept of access to justice did not develop until the twentieth century, it should not be surprising that early common law courts did not adopt a broad view of their own jurisdiction.[81] This approach was likely motivated not only by the fact that medieval judges did not consider themselves as required to provide access to justice in the contemporary sense, but also by the fact that early common law courts were only one of several potential venues for legal or quasi-legal redress.[82] For example, at certain times in English history,

there was no distinction of jurisdictions; . . . all matters, as well spiritual as temporal, were determined in the county court, called the sheriff’s tourn, where the bishop and earl (or in his absence the sheriff) sat together; or else in the hundred court, which was held in like manner before the lord of the hundred and ecclesiastical judge.[83]

Furthermore, according to Sir Frederick Pollock, judicial jurisdiction in the Anglo-Saxon period

began . . . with being merely voluntary, derived not from the authority of the State but from the consent of the parties. People might come to the court for a decision if they agreed to do so. They were bound in honour to accept the result; they might forfeit pledges deposited with the court; but the court could not compel their obedience any more than a tribunal of arbitration appointed . . . under a treaty between sovereign States can compel the rulers of those states to fulfill its award.[84]

As Pollock’s statement suggests, one of the key elements of jurisdiction involves the inherent authority of the court to compel compliance with its orders, although this type of power has not always existed.[85] This is not to say that judges in the early common law period did not have any recourse against uncooperative litigants. For example, courts during Anglo-Saxon times did recognize a type of civil contempt procedure known as a “distress.”[86] However, the mechanism was relatively rudimentary; indeed, the primary form of a distress involved impounding cattle, because they were one of the few items of value that could be taken without violence against the person.[87]

In the years following the Norman conquest, English judges gained a number of powers, although the concept of judicial jurisdiction was still not as broad as it is now.[88] For example, authorities from the late medieval period noted that justices of the King’s Bench “have power over all pleas and actions, real, personal, and mixed, so long as they have a warrant for hearing them by the king’s writ, without which they have no power or jurisdiction.”[89]

The development of the King’s Bench in the mid-1230s as a permanent institution was a significant innovation in terms of judicial jurisdiction.[90] Although other courts (including the manoral or feudal courts) remained, by 1290 C.E. the jurisdiction of the King’s Bench was considered “superior to all jurisdictions in [the king’s] realm.”[91] However, the King’s Bench was only required (or allowed) to accept jurisdiction[92] if the plaintiff was able to formulate a claim in the terms outlined by a particular writ.[93]

As has been discussed by numerous commentators, both historic and modern, these original forms of jurisdiction were highly formulaic and lauded form over substance.[94] Nevertheless, these and similar restrictions on judicial jurisdiction continued into the thirteenth century and beyond.[95]

2. Jurisdiction and Contemporary Arbitration in the United States.

Although critics of consumer and employment arbitration often complain that such procedures are essentially “mandatory” in nature, arbitral jurisdiction has consistently been described by U.S. courts as voluntary, based on the conception of arbitration as a “creature of contract.”[96] While the consensual nature of arbitral jurisdiction is often used to downplay the legitimacy of arbitration as compared to litigation,[97] the longstanding characterization of arbitral jurisdiction as voluntary is similar if not identical to Sir Frederick Pollock’s description of the jurisdiction of medieval English courts.[98]

Analogies can also be drawn between arbitral jurisdiction and the jurisdiction of the King’s Bench.[99] For example, commentators have recognized that contemporary arbitration requires two grants of jurisdiction, meaning two different indications of consent to arbitration of a particular legal dispute.[100] The first grant of jurisdiction comes from the state and reflects the notion of objective arbitrability, which involves the question of whether the subject matter itself is amenable to arbitration.[101] The second grant of jurisdiction comes from the parties and reflects the principle of subjective arbitrability, which involves the question of whether this particular dispute has been submitted to arbitration.[102] State grants of jurisdiction are typically found in arbitration statutes such as the Federal Arbitration Act and state law analogues, and party grants of jurisdiction are typically found in individual arbitration agreements.[103]

Arbitration’s dual jurisdictional nature is relevant to the current discussion in two ways. First, recognition of the centrality of the state grant of jurisdiction can be viewed as placing arbitral proceedings on a par with judicial proceedings because in both instances the state is involved in determining where a claim may be heard.[104] Second, the dual jurisdictional nature of arbitration reflects a type of concurrent jurisdiction that was evident not only in medieval England, but also in contemporary judicial systems.[105] This latter conclusion is supported by statements from Thomas Main, who has suggested that modern arbitration can be considered akin to the ancient courts of equity.[106]

One of the most pervasive criticisms of the jurisprudential legitimacy of contemporary arbitration involves perceived jurisdictional limitations on the arbitrator’s power to compel attendance and impose sanctions for the failure to comply with awards and procedural orders.[107] However, many of these concerns are no longer relevant because innovations in arbitral law have empowered arbitrators to issue subpoenas compelling non-parties to attend and produce documents at an arbitral hearing.[108]

Contemporary arbitrators also resemble judges in that they can enforce procedural norms through the imposition of sanctions ranging from negative inferences to costs to default awards.[109] Indeed, contemporary arbitrators enjoy a range of powers that are effectively equal to that of a modern court.[110] Although some actions remain beyond the ability of an arbitrator—for example, the ability to compel attendance of a witness who is geographically distant—judges operate under similar restrictions.[111]

Skeptics of arbitral proceedings often claim that arbitration is a lesser form of justice because arbitrators’ jurisdictional limitations mean that they do not have direct access to the police powers of the state.[112] However, contemporary arbitration statutes facilitate the enforcement of arbitral orders by providing parties and/or the tribunal with speedy access to courts, who may then exercise their police powers, in a variety of circumstances.[113] While this procedure is indirect rather than direct, judicial assistance is not only available as of right but also allows very little judicial scrutiny of the content or merits of the arbitral order, thereby elevating the power of a contemporary arbitral tribunal to a level similar to that of a court.[114]

Another way in which consumer and employment arbitration resemble early common law litigation involves the jurisdiction to determine jurisdiction.[115] Courts have long enjoyed the inherent power to establish the extent of their own jurisdiction, sometimes sua sponte and sometimes at the request of the parties.[116] This principle appears to have existed in early common law courts to the same extent as contemporary courts.[117] However, this power is not restricted to judges. Instead, arbitrators are also empowered to determine questions relating to their own jurisdiction.[118] As a result, the jurisdictional powers of a contemporary arbitral tribunal can be considered at least as extensive as that of an early common law court.[119]

B. Procedures

Another longstanding challenge to arbitral legitimacy involves the informality of the procedures used to resolve the dispute.[120] The standard assumption is that more process means better process, even though early proponents of arbitration, including Chief Justice Warren Burger, convener of the Pound Conference, believed that the formality inherent in litigation actually posed a threat to access to justice for small, legally unsophisticated parties.[121] However, procedural formality has not always been an element of judicial proceedings, as discussed in the following paragraphs.

1. Procedures in Early Common Law Courts.

Many of the procedures used in early common law courts were much less formal than those seen in modern courts. For example, lawyers are routinely involved in contemporary judicial proceedings, even though there is no constitutional right to representation in contemporary civil litigation.[122] However, counsel only rarely appeared in early common law courts, largely because “there was no class of professional lawyers” during the early medieval period.[123]

Lawyers were not the only legal professionals to be missing from early common law courts. According to Sir Frederick Pollock, legal proceedings in Anglo-Saxon England were also lacking “judges in our sense of learned persons especially appointed to preside, expound the law, and cause justice to be done.”[124] Instead, judgments of the court “proceeded from the meeting itself, not from its presiding officer.”[125]

Of course, this state of affairs did not exist indefinitely. Following the Norman conquest, the English kings sought to professionalize the bench as a way of asserting control over the nation at large.[126] Thus, in January 1176, King Henry II took steps to solidify the system of royal justice by creating six judicial circuits and outlining the duties of the judge.[127] Although Norman England had seen royal justices in the past, the judges who were appointed as a result of the reforms of 1176 enjoyed a higher degree of authority than had been seen previously, largely as a result of the judges’ close personal relationships with the king.[128] However, judicial powers were still closely circumscribed and linked directly to the scope of authority provided to the judge by the king through written instructions or royal writs, as discussed above.[129]

Legal historians do not discuss concerns about bias at the hands of judges during the early common law period, but Henry of Bracton (also known as Henry de Bracton or Henry de Bratton), a thirteenth century cleric and jurist, did identify issues relating to bias on the part of the jury.[130] For example, Bracton noted that a juror would be

repelled on account of a close (but not a slight) intimacy. Likewise on account of consanguinity and present affinity . . . . The same may be said above concerning friendship, intimacy, and enmity. . . . Likewise if he be so under his power, that he may be controlled or hurt or such like . . . . Likewise if a juror or any of the parties be in the same cause or a similar one. Likewise he is repelled, if he is the counsel of either party or the advocate.[131]

Not only did early common law courts enforce principles of independence and impartiality for those involved in hearing legal disputes, they also had procedures for challenging and replacing jurors who were found wanting in that regard.[132] For example, Sir John Fortescue, Chief Justice of the King’s Bench in the mid- to late fifteenth century, noted that

either party may challenge the array, and allege that the Sheriff had acted therein in favor of the other party, (viz.) by summoning such as are not indifferent; which exception, if it be found to be true upon the oath of two men of the same panel pitched on by the Justices, the panel shall immediately be quashed and then the Justices shall write to the Coroners of the same county, to make a new panel . . . .[133]

The informality reflected in early common law courts with respect to legal actors also existed with respect to other procedural matters. For example, early common law courts did not operate pursuant to any rules of evidence, which did not even begin to develop until about 1200 C.E.[134] In fact, procedures relating to the taking and introduction of evidence did not start to be codified until the 1700s, which is also when the key hallmark of common law litigation, cross-examination, began to be developed.[135] Discovery was also a relatively late arrival on the judicial stage and was not even a part of the early common judicial procedure, because it developed separately in the courts of equity at a somewhat later date.[136]

As for the hearings themselves, not much is known, although David Millon has surmised that early common law trials were extremely informal and “began with statements by counsel of their clients’ versions of the case.”[137] Furthermore,

the earliest common law jurors were presumed to know the facts of the case. Their knowledge, whether first-hand or obtained before trial by unofficial means, was supposed to be the basis for their verdict. While certain kinds of documentary evidence were always a part of jury trials, the use of witnesses testifying under oath in open court as a means of informing the jury developed more gradually. . . . Very little is known about what, if any, rules of evidence were applied to exclude oral testimony. The concept of materiality may have existed, though its meaning is unclear . . . [although] the parties seem to have enjoyed broad latitude.[138]

Given this information, Professor Millon suggests that “we should hesitate before continuing to take for granted the positivist assumptions that underlie much important legal history scholarship.”[139] Indeed, he notes that, rather than being controlled by precedent,

the jury appears to have been invited to apply its own knowledge of the facts and perhaps also its own notions of right and wrong. Decision according to “conscience” may have meant nothing more than a conscientious effort to follow the trial judges’ suggestions or the jurors’ own beliefs about official doctrine. It may, however, have meant something more: a conscientious determination about right and wrong according to whatever normative considerations the jurors believed appropriate to the particular case. In either event, premodern trial procedure seems a far cry from our elaborate efforts to guarantee jury verdicts according to official rules.[140]

Informality in early common law courts also arose in other ways. For example, Richard Keyser has discovered that parties in early common law courts were permitted to adopt their own private agreements on a variety of matters, creating “exceptions to generally applicable legal rules, a margin of flexibility that was especially useful when making contracts, adjusting judicial procedures for specific cases, and arranging other non-contentious agreements.”[141] Although the private procedural agreements (pacta) could not be used to defy or undermine the law (leges), they could be used to tailor the procedure to accommodate specific concerns.[142]

Interestingly, it was not just the parties who were involved in tailoring procedural norms in the early common law period. Judges could also be quite “aggressive” in this regard, “bend[ing] conventional doctrine in order to facilitate resolution of issues within court,”[143] and seeking to “influence” litigants’ consent to such changes so as to manipulate both procedure and outcome.[144]

Bringing suit in an early common law court did not preclude use of other dispute resolution devices such as mediation or arbitration, which existed in parallel with litigation before, during, and after the medieval period.[145] Amicable settlements between the parties could be generated with the assistance of the judge in what appears to be an early type of judicial mediation or settlement conference, while other settlements developed extrajudicially, outside the formal adjudicative process.[146] As a result, “[m]any concords were quasi-judicial in character,” although there were also a large number of “explicitly ‘friendly’ and voluntary, compromise-like settlements.”[147]

2. Procedures in Contemporary Arbitration in the United States.

Contemporary forms of consumer and employment arbitration developed in the United States as a response to recommendations generated by the Pound Conference convened by Chief Justice Warren Burger in 1976.[148] Ironically, many of the procedural innovations that were consciously and purposefully promoted by the Pound Conference have been precisely the ones to generate the greatest amount of skepticism about the quality of justice associated with arbitration.[149] However, many of these same elements were also found in early common law courts.

For example, opponents of consumer and employment arbitration often disparage the flexibility and informality of arbitral procedures, even though those elements have been both protected and praised by courts and commentators under the rubric of party autonomy.[150] Indeed, arbitration’s ability to tailor procedures and “fit the forum to the fuss” have long been considered one of its most positive aspects.[151] While modern courts permit parties to exercise a limited degree of procedural autonomy within judicial proceedings, “bespoke” litigation procedures are nowhere near as common or as broad as in arbitration.[152] Instead, the amount and nature of procedural flexibility of contemporary forms of consumer and employment arbitration more closely resemble that found in early common law courts.[153]

Nowhere is the overlap between the two processes more apparent than in the area of evidence. While it is unknown whether the number of witnesses called in consumer and employment arbitration is more or less than those called in early common law courts,[154] it is clear that the rules of evidence, which, according to Wigmore, were originally developed to address concerns about witness credibility and inconsistent testimony, do not apply in contemporary arbitration.[155] As a result, parties in arbitration do not need to lay a foundation for documents that are to be introduced into proceedings or abide by the rule against hearsay.[156] However, contemporary arbitration does feature what Wigmore called “the most efficacious expedient ever invented for the extraction of truth,” namely cross-examination.[157]

Contemporary arbitration’s relaxed approach to evidence has been justified on several grounds, including the fact that parties in consumer and employment arbitration may not be represented by counsel and the notion that arbitrators, like judges, are sophisticated enough to take credibility issues into account when reviewing evidence.[158] It is also possible to explain the approach used in early English courts and contemporary U.S. arbitration by virtue of the fact that these types of disputes turn(ed) more on the facts than on the law.[159] As a result, early common law courts and modern forms of employment and consumer arbitration both utilize(d) procedures that rely to a large extent on the parties’ statements of the case.[160]

Some variation between contemporary U.S. arbitration and early English litigation does exist with respect to the bearing that the law has on the dispute. For example, arbitrators in consumer and employment arbitration are bound by well-developed principles of law, even though many of the disputes do not involve complex questions of law, whereas judges in early common law courts were not bound by law to anywhere near the same degree.[161] Part of this discrepancy is pragmatic: judges in medieval times did not have access to the same type of published law that binds contemporary arbitrators, because the only written accounts of judicial opinions available during the early common law period (the Year Books, which included law students’ reports of cases they attended) were quite short and were not considered in any way precedential.[162] Indeed, the strict concept of stare decisis, as it is understood today, did not arise in English courts until the late nineteenth century.[163]

However, common law judges’ relaxed approach to the law can also be described in more philosophical terms. For example, although the concept of equity had not yet formally developed,[164] judges in the early common law era were known to ignore the technicalities of the law in order to achieve a just result.[165] While nonspecialists are often confused on this point,[166] this is one of the areas where contemporary arbitration differs from early common law courts, because consumer and employment arbitrators are required to apply the law rather than general principles of equity and are not allowed to simply seek a just result.[167]

To some extent, the myth that consumer and employment arbitration are decided on equitable rather than legal principles may be due to the fact that parties often proceed in arbitration without legal representation, an approach that was also used in early common law courts.[168] However, the need for lawyers in contemporary arbitration may be diminished not only because many of the disputes arise as a matter of fact rather than as a matter of law, as was true of early common law proceedings,[169] but also because arbitrators in consumer and employment matters are already well-versed in these areas of law and may, according to the U.S. Supreme Court, “draw on their personal knowledge in making an award.”[170] This phenomenon is again reminiscent of early English procedure because, according to Professor Millon, jurors in early common law courts were expected to come to the dispute with useful pre-existing knowledge that the judge—who typically rode circuit and came from outside the geographic region, which limited his knowledge of the credibility of witnesses and the underlying factual context of the dispute—lacked.[171]

Another area where contemporary arbitral and early common law procedures resemble one another involves the independence and impartiality of decision-makers. According to Bracton, the historical focus was on bias among jurors, but the type of concerns—namely close personal, professional, or financial connections between the decision-maker and either the parties or counsel—are identical to those that exist in contemporary arbitration.[172] Not only do many procedural rules governing consumer and employment arbitration indicate that arbitrators (including party-appointed arbitrators) must be both independent and impartial and must disclose any relevant personal, professional, or financial connections with the parties or counsel,[173] so, too, do special “due process protocols” involving consumer and employment arbitration.[174]

Despite best efforts to appoint an independent and impartial decision-maker, some types of bias may only be discovered after the proceeding has begun. Sir John Fortescue described how a challenge to a particular juror who was thought to have engaged in wrongdoing might proceed in an early common law court,[175] and those procedures are very similar to the type of evidentiary hearing that is convened to determine whether bias exists on the part of an arbitrator in a consumer or employment proceeding and whether a new arbitrator should be appointed.[176]

The final item to discuss involves the way in which early common law courts and contemporary arbitrators can encourage parties to consensual resolution of a legal dispute. For example, judges in the early common law period were allowed to encourage amicable settlement between the parties, just as contemporary arbitrators may, and could, themselves assist with the settlement process.[177] While modern arbitrators are often precluded from “double hatting” in a particular procedure (meaning an arbitrator cannot switch between acting as an arbitrator and a mediator in the same matter),[178] arbitrators can support efforts to settle disputes amicably by staying an arbitration while negotiations or mediations progress or by encouraging parties during a prehearing conference to engage in settlement discussions.[179] Arbitrators in employment and consumer matters are also allowed to enter consent awards, should a matter be resolved amicably before the arbitrator decides the dispute on the merits.[180]

C. Creation of Precedent and Written Outcomes

One of the most common arguments about the alleged second-class nature of contemporary arbitration involves its inability to create binding precedent and its use of relatively terse written outcomes, at least as compared to published judicial decisions in the modern era.[181] However, consumer and employment arbitration are remarkably similar to early common law courts in both regards.

1. Creation of Precedent and Written Outcomes in Early Common Law Courts.

Although positivist perspectives of the law appear to be currently in the ascendancy in academic circles, David Millon has argued that a “non-positivist approach to law does not imply social confusion and individual insecurity,” because “[e]ven in the absence of a system dedicated to consistent application of official rules as the means by which conflicts are to be resolved and behavior controlled, shared beliefs and assumptions about how people should behave provide a sufficient basis for orderly, predictable social existence.”[182] Indeed, some scholars, including Patrick Glenn, might argue that the millions of judicial decisions rendered in the United States increase rather than decrease the type of “social confusion and individual insecurity” of which Professor Millon spoke, because it “turns out to be very difficult to say that each [decision] represents a rule of law.”[183] Indeed, Professor Glenn has noted that “[e]fforts are made to prevent citation of cases” in the United States, particularly in situations involving unpublished decisions and memoranda orders, which are often as concise as the arbitral awards that have been routinely criticized by commentators and journalists.[184]

Interestingly, early common law England reflected precisely the type of nonproblematic, nonpositivist legal system described by Professor Millon.[185] For example, the concept of common law precedent was minimal or nonexistent during this time period; indeed, as Professor Millon has recognized:

No transcripts or other records of actual trial proceedings survive [from this era]; as far as anyone knows, none were kept. We have little more than the verdicts returned to the central courts and entered on the plea rolls, and . . . these are usually concisely uninformative statements of “guilty” or “not guilty.”[186]

As a result, judgments “were regularly preserved only in the memory of the suitors.”[187]

Eventually, over time, English courts began to develop a shared and standard understanding of the relevant substantive principles as a form of local custom.[188] However, Blackstone differentiated between three types of “unwritten or common law”:

1. General customs; which are the universal rule of the whole kingdom, . . . 2. Particular customs; which, for the most part affect only the inhabitants of particular districts. 3. Certain particular laws; which, by custom, are adopted and used by some particular courts, of pretty general and extensive jurisdiction.[189]

Blackstone also recognized that “[s]ome have divided the common law into two principles grounds or foundations: 1. Established customs; . . . and 2. Established rules and maxims.”[190] Interestingly, “the authority of the maxims rests entirely upon general reception and usage; and the only method of proving this or that maxim is a rule of the common law, is by showing that it hath been always the custom to observe it.”[191]

This phenomenon led Blackstone to the “very natural, and very material, question” of

how are these customs or maxims to be known, and by whom is their validity to be determined? The answer is, by the judges in the several courts of justice. . . . The knowledge of that law is derived from experience and study; from the “viginti annorum lucubrationes,” which Fortescue mentions; and from being long personally accustomed to the judicial decisions of their predecessors.[192]

Although Blackstone contemplated a set of written decisions that could later be consulted by judges who were addressing similar issues,[193] earlier commentators viewed the customary nature of the common law in a slightly different light. For example, Ranulf de Glanvill (or Glanvil),[194] Chief Justiciar during the reign of King Henry II, wrote that

[o]ur King does not despite the Laws of the Realm, and those Customs which, founded on reason in their introduction, have for a long time prevailed; . . . For it will be seen that the English Laws, although unwritten may without any absurdity be properly termed Laws (since this itself is Law–that which pleases the Prince and has the force of Law) for it is evident that they were promulgated by the advice of the Nobles and the authority of the Prince concerning doubts settled in their council. For, if from the mere want of writing only, they should not be considered as Laws, then, unquestionably, writing would seem to confer more authority upon Laws themselves, than either the Equity of the persons constituting, or the reason of those framing them.[195]

Bracton also recognized the extraordinary nature of English law, writing that

[w]hereas in almost all countries they use written laws and right (leges et jura scripta), England alone uses within her boundaries unwritten right and custom. In England, indeed, right is derived from what is unwritten, which usage has approved. But it will not be absurd to call the English laws, although they are unwritten, by the name of Laws, for everything has the force of Law, which has been rightfully defined and approved by the counsel and consent of the magnates, with the common warrant of the body politic, and the previous authority of the king or the prince.[196]

Some might argue that the early common law courts relied on unwritten law because of the high level of illiteracy that existed within England at that time.[197] However, the respect for unwritten law was explained by Bracton as relating to the fact that England was home to

many different customs according to the diversity of places; for the English have many things by custom, which they have not by [written] law, as in divers [sic] counties, cities, boroughs, and vills, where one will always have to inquire what is the custom of the place, and in what manner, those who allege a custom, observe it.[198]

Early common law judges also tacitly contributed to the notion that unwritten law was sufficient. For example, Sir William Markby noted that

[t]he resource of the English lawyers when called on to fill the gap which was elsewhere supplied by the Roman Law was custom. Of this custom the judges were themselves, in the last resort, the repository. But the judges usually observed a discreet silence as to the source from which they derived the rules upon which their decisions were based. Here and there a judge or a counsel arguendo would mention a precedent, but if we may trust the reports contained in the Year Books, even this was rare. Still there appears to have been very little tendency to innovation; and there was doubtless a tradition of the courts to which every judge knew that he must conform at the peril of his reputation. Some record of the proceedings of the Superior courts of justice was always kept, and we have a series of such records commencing as early as the 6 Ric. II [1194]. These early records might, and probably did, afford some guide in future cases, though they were not drawn up with that object.[199]

Sir Erskine Holland came to a similar conclusion, noting that “[i]n England cases have been cited in court at least as early as the time of Henry I [1100–1135 C.E.]. They are, however, stated by Lord Hale to be ‘less than law,’ though ‘greater evidence thereof than the opinion of any private persons.’”[200] However, Holland noted that the positivist view had come into ascendency by Blackstone’s time (the mid- to late eighteenth century), when “the view was established that ‘the duty of the judge is to abide by former precedents.’”[201]

According to Markby, it was not until the reign of Edward I (1272–1307 C.E.), which was quite late in the early common law period, that there even began to be evidence of the practice of

drawing up . . . reports of cases heard and determined, the main and apparently the sole object of which was to furnish judges with precedents to guide them in their future decisions. In these Year Books there is very little argument, but only an ascertainment by oral discussion of the points at issue with the decision of the court. . . . Reference is also sometimes made by the reporter to other cases involving the same point. The later Year Books give the arguments somewhat more fully, but still we do not find previous cases frequently cited.[202]

Furthermore, Markby stated that, to the extent that previous decisions were cited during this period, it was “always as indicating the custom of England, and not as authority. . . . These decisions were . . . evidence only of what the practice had been, guiding, but not compelling, those who consulted them to a conclusion.”[203] It was not until much later that the positivist approach predominated such that “each single decision standing by itself . . . [became] an authority which no succeeding judge was at liberty to disregard. This important change was very gradual, and the practice was very likely not altogether uniform.”[204]

Interestingly, the shift in thinking about the nature of legal citation was mirrored by a corresponding shift in judicial practice. Thus, Markby noted that “[a]s the judges became conscious of [the change], they became much more careful of their expression, and gave much more elaborate explanation of their reasons.”[205] In so doing, they departed from their earlier practice of drafting very terse judgments, if a written decision was even rendered at all.[206]

Notably, the content of those early decisions differed greatly from the fully reasoned decisions issued by contemporary judges in reported cases.[207] For example, even those decisions from the mid-1500s, just after the end of the early common law period, are remarkable for their focus on factual recitations and the absence of what today would be called legal analysis.[208]

Another interesting feature of the early common law period is that the decisions that were considered most precedential were those relating to matters of procedure, not substance.[209] Indeed, Sir Percy Henry Winfield once noted that medieval law was so focused on procedure “that we wonder at times where the point of substantive law is to be found in the web of writ, declaration, counterplea, double plea, and judgment.”[210]

2. Creation of Precedent and Written Outcomes in Contemporary Arbitration in the United States.

Although contemporary arbitration is often vilified for the brevity of its awards and the inability to generate binding precedent, the procedure is much more nuanced than many people appreciate.[211] For example, although arbitral awards do not generate binding precedent, awards rendered in some domestic proceedings— particularly securities arbitration—can act as a form of soft precedent.[212]

This phenomenon may surprise nonspecialists who believe that arbitral awards are entirely private and confidential.[213] However, tens of thousands of arbitral awards have been published over the last few decades in specialty reporters and electronic databases, thereby providing parties and arbitrators with a rich source of materials to consider.[214] While arbitrators do not have to follow earlier awards, many regularly consider the analysis reflected in those documents, particularly if the dispute arises in areas where arbitration is the predominant means of resolving legal conflict.[215] Previously rendered arbitral awards may be especially persuasive in the area of procedure, which is, of course, highly reminiscent of the approach adopted by early common law courts.[216]

Another similarity between contemporary arbitration and early common law courts involves how the outcome of the dispute is set forth in writing. Many early common law decisions were merely a sentence or two in length, a practice that nonspecialists often believe is also true of awards rendered in consumer and employment arbitration.[217] However, a large-scale empirical study recently confirmed that contemporary forms of domestic arbitration, particularly in the area of employment law, “routinely” generate “lengthy awards that are substantially devoted to legal analysis and that often make extensive use of precedent.”[218]

Part of the reason for the terseness of early common law decisions arose from the fact that most disputes were factual rather than legal in nature.[219] Indeed, citation of legal precedent qua precedent did not arise until quite late in the early common law period, and even then, it was by no means universal or even frequent.[220]

Traditionally, employment and consumer arbitration were and sometimes are similarly fact-driven, which explains why arbitral awards in those fields can be somewhat shorter than published judicial decisions.[221] Furthermore, arbitrators in consumer and employment disputes were at one time encouraged to draft relatively short awards based on the (likely mistaken) belief that those types of awards were less likely to be overturned by courts.[222]

However, the situation has changed in the last few decades. Not only have contemporary courts adopted an increasingly expansive view about objective arbitrability, thereby allowing arbitrators to resolve various statutory claims in addition to “mere” factual disputes,[223] but arbitral organizations have also adopted rules requiring arbitrators to provide the reasoning for their decisions, even in so-called standard awards.[224] The trend toward increased legalism and formality in arbitration suggests that arbitral awards will become more like judicial decisions as time goes by,[225] although it appears unlikely that awards in consumer and employment arbitration will ever involve the same type of detail and analysis seen in contemporary judicial decisions[226] or in international or commercial awards, which are often “fully reasoned,” with findings of fact and conclusions of law.[227]

D. Finality

The final issue to consider involves the finality of the dispute in question. Consumer and employment arbitration have often been disparaged because they eliminate parties’ ability to appeal an award on the merits, and because arbitrators have no independent means of enforcing awards against noncompliant parties.[228] Again, however, contemporary arbitration shares some interesting similarities with early common law courts.

1. Finality and Early Common Law Courts.

In many ways, early common law courts respected the concept of finality in a much more straightforward manner than contemporary courts do, partly because parties during the early common law period did not enjoy a right of appeal.[229] As David Millon has stated, early common law courts “seem[] to have tolerated—or perhaps even encouraged—significant jury discretion about normative as well as factual questions. Further, there was no generally available means to challenge a jury verdict after the fact on the ground that the jurors failed to apply correctly a rule of official substantive law.”[230]

In fact, according to Blackstone, the right of appeal was not recognized until 1357 C.E., when a statute was adopted creating a new chamber in the court of exchequer “to determine causes by writs of error from the common law side of the court of exchequer.”[231] Prior to that time, the sole remedy for an erroneous judgment appears to have been the attaint, which some scholars have assumed was meant to avoid jury verdicts that misapplied the relevant legal rules.[232] However, other commentators have argued that the attaint was used to address corruption within the jury and avoid verdicts generated by bribery and other corrupt measures.[233]

As intriguing as this debate may be, it may not provide much assistance because, “[e]ven if, as a matter of legal theory, attaint could have been used to obtain verdicts in accordance with official rules, in fact attaint does not seem to have offered an effective means for the accomplishment of that or any other objective.”[234] Indeed, “for much of the medieval period, custom exempted London juries from attaint, thereby excluding large numbers of jury verdicts from scrutiny.”[235]

Early common law courts suffered from other enforcement issues as well. For example, judges during this time were unable to render default judgments.[236] Indeed, Sir Frederick Pollock took the view that the parties from the Anglo-Saxon period probably would not have even understood the concept.[237] Furthermore, in stark contrast to modern judicial proceedings, judgments rendered by early common law courts were often not directly enforceable by the court.[238] Instead, “[t]he successful party had to see to gathering the ‘fruits of judgment’ . . . for himself.”[239]

2. Finality and Contemporary Arbitration in the United States.

The first similarity with respect to finality of early common law judgments and contemporary arbitral awards is easy to see: the absence of a judicial appeal on the merits.[240] However, the situation is slightly more nuanced than that simple statement suggests. Indeed, parties in consumer and employment arbitration today are entitled to a number of protections that were not available to litigants in early common law courts.

First and foremost, although parties involved in consumer and employment arbitration cannot mount a challenge on the merits, they can seek judicial review of an award on a variety of procedural grounds.[241] This mechanism provides a remedy for several types of injuries, including those (such as corruption) that were addressed by the attaint in the early common law period.[242]

Second, parties in contemporary arbitration can create a contractual means of appealing a matter on the merits, although that appeal must be heard by arbitrators, not by courts, lest the agreement fall afoul of the U.S. Supreme Court opinion in Hall Street Associates, L.L.C. v. Mattel, Inc.[243] These types of arbitral appeals have been facilitated by special procedural rules promulgated by arbitral organizations in recent years.[244]

The second key similarity between contemporary arbitration and early common law courts involves enforcement of the final outcome. Like medieval judges, consumer and employment arbitrators lack the ability to provide direct enforcement of the outcome of their proceedings.[245] However, the Federal Arbitration Act provides a simple and effective means of enforcing arbitral awards against recalcitrant parties.[246] Essentially, all that a prevailing party needs to do is bring the award to court to be transformed into a judgment, which is then enforced in the same way as a judicial decision.[247] The ease with which an arbitral award can be enforced under the law helps drive what appears to be robust voluntary compliance with awards rendered in consumer and employment arbitration.[248]

There is one way in which enforcement of modern arbitral awards differs from enforcement of early common law decisions. Unlike early English judges, contemporary arbitrators have the power to enter an award following the default of one of the parties.[249] Notably, a default award cannot be entered simply upon nonappearance of one of the parties, but may only be issued after the party in attendance submits sufficient evidence to support the default award.[250]

IV. Analysis and Conclusion

Opponents of consumer and employment arbitration have long questioned the legitimacy of arbitral procedures based on real or perceived differences between contemporary arbitration and contemporary litigation.[251] While arbitration is far from perfect,[252] recursive allegations about the “second class” nature of arbitral justice can and should be put to rest.[253]

One way of doing so is through applied legal history, which can be used as a means of “normaliz[ing] . . . a contemporary practice by showing that it has . . . antecedents.”[254] By adopting an applied legal-historic methodology, this Article provides a new perspective on questions about the legitimacy of arbitration and offers judges, legislators, and reformers important insights into tacit presumptions and unconscious biases regarding the nature of civil justice.[255] The methodology used herein also involves the use of “surprising validators,” which Edward Glaeser and Cass Sunstein have suggested is one of the best, if not only, ways to overcome problems associated with pervasive political misperceptions.[256]

As a substantive matter, the preceding paragraphs have shown that contemporary forms of consumer and employment arbitration bear a striking resemblance to early common law courts in a number of key regards.[257] For example, both processes were and are characterized as voluntary in nature, a discovery that could help offset the ongoing psychological bias in favor of the superiority of litigation over arbitration.[258] Similarly, recognizing the diversity of civil justice options available to English litigants during the medieval period—an array that not only included common law and manoral courts but also embraced arbitration, mediation, and judicial/extrajudicial settlement—could help legitimize the contemporary concept of the “multi-door courthouse.”[259]

Perhaps the most remarkable similarities involve the two devices’ internal procedures. Both mechanisms reflect a high degree of procedural flexibility and informality, particularly with respect to the introduction of evidence, and both contemplate parties who are largely unrepresented by counsel.[260] Other similarities involve the way in which concerns about the independence and impartiality of the decision-makers are characterized (i.e., close connections of a personal, professional, or financial nature are considered suspect and therefore prohibited) and addressed (i.e., through removal and replacement of the biased individual(s) after an evidentiary hearing).[261] Furthermore, both mechanisms recognize that the authority of the outcome largely stems from process itself rather than from the nature of the decision-maker or the outcome of the dispute.[262]

This is not to say that contemporary arbitration and early common law courts are identical in all procedural regards. For example, the powers enjoyed by arbitrators in consumer and employment law matters are more analogous to those of a modern judge than a medieval judge.[263] Arbitrators today also have the ability to issue a default award, something that was not even contemplated in the early common law period.[264] However, these discrepancies do not create problems for the current analysis, because they show consumer and employment arbitration to be more rather than less sophisticated than early common law courts.

Contemporary forms of arbitration again come into alignment with early English courts in matters relating to the creation of precedent and written outcomes. For example, arbitrators in consumer and employment law matters often draft relatively concise awards, focusing more on the facts than on the law, just as judges in the early common law period did, although arbitral awards are becoming lengthier and more sophisticated than decisions rendered by medieval English judges.[265] Similarly, arbitral awards, like early common law decisions (to the extent they were even written), do not act as a form of binding precedent,[266] although contemporary awards can act as a type of soft precedent, particularly on questions of procedure, just as early common law judgments did.[267]

Finally, consumer and employment arbitration resemble early common law courts with respect to the finality of the outcome. Both procedures lack the availability of an appeal on the merits as well as an independent means of forcing parties to comply with the decision rendered at the end of the process.[268] However, modern arbitral awards are subject to easy, albeit indirect, judicial enforcement mechanisms as a matter of statute and provide for judicial review of arbitral awards on procedural grounds, making contemporary arbitration more sophisticated and formalistic than medieval judicial procedures.[269]

As useful as the preceding discussion is, it is only the first step of the comparative analysis.[270] Next, it is necessary to critically evaluate the material generated by the comparative process.[271] As it turns out, three key observations can be drawn from the research findings adduced herein.

The first involves David Millon’s views about the contemporary bias toward a positivist perspective that suggests the only legitimate conception of law is one that involves a system of rules that are “articulated and administered by agents of the state,” meaning judges.[272] This characterization, which has been adopted by scholars such as Judith Resnik in the context of discussions about the propriety of arbitral processes, obviously creates an immediate and insurmountable obstacle to the legitimacy of arbitration, even though arbitrators are required to (and do) follow and apply the governing law to the same extent as judges.[273]

However, the current analysis has identified a number of problems with the positivist argument described by Professor Millon.[274] For example, if the positivist focus is based solely on the nature of judicial decision-makers as agents of the state, then those neutrals who operate pursuant to other types of state authority should be respected to an equal degree.[275] As discussed previously, the state does in fact delegate its authority to arbitrators through certain state grants of jurisdiction to arbitration.[276]

If, on the other hand, the positivist focus is based on the presumed quality of judicial decision-makers as more intelligent, more qualified, or more ethical than other alternatives and thus more likely to provide higher quality justice as a matter of both substance and procedure, then those decision-makers who are shown to have substantive and procedural expertise equal to that of judges and ethical obligations equal to those imposed on judges should be given the same amount of respect as a judge.[277] Conversely, those who do not share all of the relevant characteristics—for example, judges who have no legal training—should not be given the same degree of respect as judges who meet all the relevant criteria.[278]

This Article has shown that arbitrators in the consumer and employment context have the necessary qualifications to be considered on par with judges who hear similar types of disputes.[279] Not only are arbitrators chosen for their expertise in a particular area of law—a practice that is reminiscent of procedures used in early common law courts—they are also subject to the same type of ethical restrictions as both medieval and modern judges.[280] Furthermore, empirical research “provides little reason to believe that arbitration awards are qualitatively different than judicial opinions,”[281] which suggests that positivist assumptions about the nature and quality of judicial decision-making is based not on the actual superiority of judges over arbitrators but is instead based on cognitive distortions derived from psychological phenomena such as the status quo bias.[282]

The second key lesson that can be drawn from the comparative analysis conducted herein is that process-oriented analyses regarding arbitral legitimacy are hearkening back to norms with ancient roots.[283] Although jurisprudential thinking has become increasingly positivistic in recent years, a number of scholars have emphasized how the legitimacy of alternative dispute resolution mechanisms such as arbitration derives from the authority of the process rather than the authority of the outcome, a principle that was also true of early common law courts.[284] The debate essentially mirrors the longstanding conflict between what Tracey George and Chris Guthrie have referred to as “the ‘public adjudication’ group,” which “call[s] for more courts and more judges even if the effect were to induce litigation,” and “the ‘private ordering’ group,” which “argue[s] that society is already too litigious” and therefore takes the view that “disputes should be resolved not inside, but rather outside, the courtroom.”[285]

The problem is that discussions about the benefits of private ordering and process-oriented analyses have reached an impasse, largely because of pervasive misconceptions relating to the nature of nonjudicial dispute resolution processes.[286] However, applied legal history provides a useful new perspective on the issue, not only by using surprising validators[287] but also by offering a broader historical perspective that “normaliz[es] . . . a contemporary practice by showing that it has . . . antecedents.”[288] As a result, those in the private ordering group who emphasize the need to respect and further process-oriented goals in dispute resolution may now be seen as acting within a larger, longstanding tradition rather than advancing novel and anomalous views about the nature of civil justice.

The third and final conclusion generated by the current comparative analysis is that process pluralism—meaning “an ideology that rejects legal centrism (the notion that courts, law, and lawyers are the primary means of handling disputes) and favors a multiplicity of dispute mechanisms [so as to] promote[] . . . the most appropriate dispute resolution process to enhance the delivery of substantive and procedural justice”—can be found in both historical and contemporary settings.[289] This suggests that modern debates about the “multi-door courthouse” are simply the old being made new again, despite allegations from those in the public ordering group that nonjudicial processes are somehow contrary to basic principles of the common law.[290]

As the preceding paragraphs show, applied legal history and comparative legal analyses provide useful insights to scholars, judges, and reformers about issues of contemporary law and practice. These types of interdisciplinary analyses not only help reinforce the perception of arbitration as a sophisticated and mature area of practice and academic study,[291] they also constitute one of the types of research that is most frequently relied upon by judges.[292] As Judge Diane Wood has noted:

At its best, legal scholarship rises above the details of any particular field of law and improves understanding of our legal system as a whole. It can reveal similarities that have been hidden by the details of old doctrines or cases; . . . [and] reveal unintended inefficiencies or impositions that are inconsistent with fundamental . . . principles. Perhaps these advances inspire legislators to pass better laws; perhaps they inspire Supreme Court Justices to look through old myths, like “separate but equal,” and realize that there is just one principle of equality . . . . [In either event,] [t]hose are some of the goals to which legal scholarship should aspire.[293]

Hopefully the current Article has not only met these goals, but also has inspired others to undertake similar works so as to improve our understanding of civil justice in the United States.


  1. See, e.g., Oxford Health Plans LLC v. Sutter, 569 U.S. 564, 565–66, 573 (2013) (dealing with arbitrator’s authority in interpreting the parties’ implicit consent in health care arbitration agreements); Am. Express Co. v. Italian Colors Rest., 570 U.S. 228, 232–33 (2013) (dealing with class waivers in the antitrust context); AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 340 (2011) (dealing with class waivers in consumer actions); Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 685–87 (2010) (dealing with implicit consent in antitrust arbitration agreements).

  2. See Michael Corkery & Jessica Silver-Greenberg, Beware the Fine Print Part III: In Religious Arbitration, Scripture Is the Rule of Law, N.Y. Times (Nov. 2, 2015), http://www.nytimes.com/2015/11/03/business/dealbook/in-religious-arbitration-scripture-is-the-rule-of-law.html [https://perma.cc/6RLR-DJRN]; Jessica Silver-Greenberg & Michael Corkery, Beware the Fine Print Part II: In Arbitration, a ‘Privatization of the Justice System,’ N.Y. Times (Nov. 1, 2015), http://www.nytimes.com/2015/11/02/business/dealbook/in-arbitration-a-privatization-of-the-justice-system.html [https://perma.cc/MN98-8BBS]; Jessica Silver-Greenberg & Robert Gebeloff, Beware the Fine Print Part I: Arbitration Everywhere, Stacking the Deck of Justice, N.Y. Times (Oct. 31, 2015), http://www.nytimes.com/2015/11/01/business/dealbook/arbitration-everywhere-stacking-the-deck-of-justice.html?_r=0 [https://perma.cc/GK2J-9P6W].

  3. See David B. Lipsky, The New York Times’ Attack on Arbitration, Disp. Resol. Mag., Summer 2016, at 6, 6–8 (“[T]he Times series is a seriously biased and one-sided attack on a dispute resolution technique that, when properly designed and administered, has proven itself to be an effective method of resolving disputes that might otherwise be costly, time-consuming, and emotionally difficult.”); Richard A. Bales, Normative Consideration of Employment Arbitration at Gilmer’s Quinceañera, 81 Tul. L. Rev. 331, 347–49 (2006) (discussing various studies showing that consumers and employees prevail at least as often, if not more often, in arbitration than in litigation); Deborah R. Hensler, Our Courts, Ourselves: How the Alternative Dispute Resolution Movement Is Re-Shaping Our Legal System, 108 Penn St. L. Rev. 165, 179–80 (2003) (noting that empirical surveys on participant satisfaction fueled the rise of arbitration in the United States).

  4. See Hiro N. Aragaki, Constructions of Arbitration’s Informalism: Autonomy, Efficiency, and Justice, 2016 J. Disp. Resol. 141, 141–42; Hensler, supra note 3, at 179; David L. Noll, Regulating Arbitration, 105 Calif. L. Rev. 985, 987–89 (2017).

  5. See Arbitration Fairness Act of 2018, S. 2591, 115th Cong. § 2 (2018) (also addressing antitrust and civil rights matters); Arbitration Fairness Act of 2017, S. 537, 115th Cong. § 2 (2017); Arbitration Fairness Act of 2015, S. 1133, 114th Cong. § 2 (2015).

  6. The “liberal federal policy favoring arbitration agreements” began with Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983), and continues through the present day. See Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1621, 1630–32 (2018); Am. Express Co., 570 U.S. at 232–33; Concepcion, 563 U.S. at 339, 344–45; Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83, 85 (2002); Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 62 (1995); Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26 (1991); Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 625 (1985); Southland Corp. v. Keating, 465 U.S. 1, 7–8 (1984).

  7. See Lamps Plus, Inc. v. Varela, 139 S. Ct. 1407, 1415–16, 1418 (2019) (dealing with class arbitration); New Prime Inc. v. Oliveira, 139 S. Ct. 532, 536, 543 (2019) (dealing with arbitration of contracts of employment for transportation workers); Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S. Ct. 524, 528–29, 531 (2019) (addressing the “wholly groundless” exception); Epic Sys. Corp., 138 S. Ct. at 1627–28 (addressing class waivers in the labor arbitration context); Kindred Nursing Ctrs. Ltd. P’ship v. Clark, 137 S. Ct. 1421, 1425, 1428–29 (2017) (dealing with waiver of jury trials and arbitration); DIRECTV, Inc. v. Imburgia, 136 S. Ct. 463, 466, 468, 471 (2015) (dealing with class waivers in arbitration); BG Grp. PLC v. Republic of Argentina, 572 U.S. 25, 28–29 (2014) (dealing with treaty-based arbitration). The recent decision in New Prime may suggest a small shift away from historical precedents, but it is still too early to tell. See New Prime, 139 S. Ct. at 537–38; Imre S. Szalai, “New Prime” and Old Faults, Arb. Info, http://law.missouri.edu/arbitrationinfo/new-prime-old-faults [https://perma.cc/3QJ9-8PYP] (last visited Jan. 16, 2020).

  8. See Thomas E. Carbonneau, Arguments in Favor of the Triumph of Arbitration, 10 Cardozo J. Conflict Resol. 395, 397–98, 401–02 (2009); Christopher R. Drahozal, “Unfair” Arbitration Clauses, 2001 U. Ill. L. Rev. 695, 696–97, 741, 749–51; Myriam Gilles, The Day Doctrine Died: Private Arbitration and the End of Law, 2016 U. Ill. L. Rev. 371, 375–76, 384, 391–92, 398; Noll, supra note 4, at 988–89, 1005–06; Donna Shestowsky, Disputants’ Preferences for Court-Connected Dispute Resolution Procedures: Why We Should Care and Why We Know So Little, 23 Ohio St. J. on Disp. Resol. 549, 558 (2008); Judith Resnik, Diffusing Disputes: The Public in the Private of Arbitration, the Private in Courts, and the Erasure of Rights, 124 Yale L.J. 2804, 2843–44 (2015).

  9. Cf. S.I. Strong, Alternative Facts and the Post-Truth Society: Meeting the Challenge, 165 U. Pa. L. Rev. Online 137, 138–39 (2017), https://scholarship.law.upenn.edu/penn_law_review_online/vol165/iss1/14 [https://perma.cc/7PLG-DA82] (noting difficulties with contemporary political debate).

  10. For example, the standard response of “more speech” advocated by Justice Louis Brandeis has been found ineffective in cases involving pervasive political misperceptions. See Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis & Holmes, J.J., concurring), overruled in part on other grounds by Brandenburg v. Ohio, 395 U.S. 444, 447–49 (1969) (per curiam); Strong, supra note 9, at 138–39 (demonstrating that “attempts to correct misinformation can actually strengthen political misperceptions . . . .”).

  11. See Thomas E. Carbonneau, Arbitral Justice: The Demise of Due Process in American Law, 70 Tul. L. Rev. 1945, 1947 (1996); Corkery & Silver-Greenberg, supra note 2; Silver-Greenberg & Corkery, supra note 2; Silver-Greenberg & Gebeloff, supra note 2. Several of these concerns have been perpetuated by courts, despite the longstanding policy in favor of arbitration. See, e.g., Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 685–87 (2010); Gary Born & Claudio Salas, The United States Supreme Court and Class Arbitration: A Tragedy of Errors, 2012 J. Disp. Resol. 21, 34, 36–38; W. Mark C. Weidemaier, Judging-Lite: How Arbitrators Use and Create Precedent, 90 N.C. L. Rev. 1091, 1128, 1144 (2012). The anti-arbitration bias dates back to the now-discredited U.S. Supreme Court decision in Wilko v. Swan. See 346 U.S. 427, 432–35 (1953), overruled by Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 480 (1989).

  12. See Edward Brunet, Arbitration and Constitutional Rights, 71 N.C. L. Rev. 81, 114–15 (1993) (suggesting that certain sections of the Federal Arbitration Act connote certain baselines of procedural fairness); Jack M. Graves, Arbitration as Contract: The Need for a Fully Developed and Comprehensive Set of Statutory Default Legal Rules, 2 Wm. & Mary Bus. L. Rev. 227, 254 (2011) (arguing that § 10 of the Federal Arbitration Act mandates due process).

  13. Edward Glaeser & Cass R. Sunstein, Does More Speech Correct Falsehoods?, 43 J. Legal Stud. 65, 67, 81, 90–91 (2014) (“Messages need to come from sources that are seen as credible to the relevant audience and not as likely to be lying . . . . [W]hen information that is unwelcome (in the sense that it casts doubt on one’s prior beliefs) comes from someone who is highly credible and difficult to dismiss, a change in view is more likely. In this respect, surprising validators can overcome asymmetric Bayesianism.”); see also id. at 91 (“Surprising validators have special credibility to precisely the people who would otherwise be inclined to dismiss them.”); Strong, supra note 9, at 141–42.

  14. Many opponents of arbitration appear to do precisely that. See Owen M. Fiss, The Supreme Court, 1978 Term----Foreword: The Forms of Justice, 93 Harv. L. Rev. 1, 29–31, 35–36 (1979); Owen M. Fiss, The History of an Idea, 78 Fordham L. Rev. 1273, 1273, 1275 (2009); Resnik, supra note 8, at 2820, 2822–23, 2841–42.

  15. This field is growing both in the United States and elsewhere. See Derek Roebuck, Early English Arbitration 1–2, 12, 23, 26–28, 62–64 (2008); Derek Roebuck, Mediation and Arbitration in the Middle Ages: England 1154–1558, at 1–2, 4–5, 29–31 (2013); Alfred L. Brophy, “Ingenium est Fateri per quos profeceris:” Francis Daniel Pastorius’ Young Country Clerk’s Collection and Anglo-American Legal Literature, 1682-1716, 3 U. Chi. L. Sch. Roundtable 637, 682, 723, 727 (1996) (discussing forms for arbitration in colonial Pennsylvania); Stavros Brekoulakis, The Historical Treatment of Arbitration Under English Law and the Development of the Policy Favouring Arbitration, 39 Oxford J. Legal Stud. 124, 125–26 (2019); Carli N. Conklin, Transformed, Not Transcended: The Role of Extrajudicial Dispute Resolution in Antebellum Kentucky and New Jersey, 48 Am. J. Legal Hist. 39, 39–41 (2006); James Oldham & Su Jin Kim, Arbitration in America: The Early History, 31 Law & Hist. Rev. 241, 243–46 (2013); Eben Moglen, Note, Commercial Arbitration in the Eighteenth Century: Searching for the Transformation, 92 Yale L.J. 135, 143–45, 149 (1985). A number of these sources challenge the longstanding assumption, asserted by Morton Horowitz in the United States and Henry Maine and William Holdsworth in the United Kingdom, that informal dispute-settlement processes such as arbitration were ousted as formal law developed. Compare Morton J. Horwitz, The Transformation of American Law, 1780-1860, at 145, 149–54 (1977) (demonstrating that arbitration was in decline as formal law developed), with Conklin, supra, at 39–41 (contending that arbitration continued throughout the antebellum period), and Moglen, supra, at 147–52 (arguing that Horowitz’s thesis misunderstands the context of early American arbitration as a whole), and Douglas Yarn, The Death of ADR: A Cautionary Tale of Isomorphism Through Institutionalization, 108 Penn St. L. Rev. 929, 938–39 (2004) (suggesting that conclusions drawn by historians like Maine and Holdsworth have been tempered by more recent evidence).

  16. See Carli N. Conklin, Lost Options for Mutual Gain? The Lawyer, the Layperson, and Dispute Resolution in Early America, 28 Ohio St. J. on Disp. Resol. 581, 581, 600–02 (2013).

  17. See Arbitration Fairness Act of 2018, S. 2591, 115th Cong. § 2 (2018) (also addressing antitrust and civil rights disputes); Arbitration Fairness Act of 2017, S. 537, 115th Cong. § 2 (2017); Arbitration Fairness Act of 2015, S. 1133, 114th Cong. § 2 (2015); Jessica Silver-Greenberg & Michael Corkery, Efforts to Rein in Arbitration Come Under Well-Financed Attack, N.Y. Times (Nov. 15, 2015), http://www.nytimes.com/2015/11/16/business/dealbook/efforts-to-rein-in-arbitration-come-under-well-financed-attack.html [https://perma.cc/NV78-T4L4].

  18. See S.I. Strong, Truth in a Post-Truth Society: How Sticky Defaults, Status Quo Bias and the Sovereign Prerogative Influence the Perceived Legitimacy of International Arbitration, 2018 U. Ill. L. Rev. 533, 562.

  19. Id.

  20. See S.I. Strong, Fed. Judicial Ctr., International Commercial Arbitration: A Guide for U.S. Judges 4–5 (2012); Elena V. Helmer, International Commercial Arbitration: Americanized, “Civilized,” or Harmonized?, 19 Ohio St. J. on Disp. Resol. 35, 35–36 (2003); Thomas J. Stipanowich, Arbitration: The "New Litigation," 2010 U. Ill. L. Rev. 1, 6–7. International arbitration also differs from consumer and employment arbitration in other key regards. See Strong, supra, at 4–5; Deborah R. Hensler & Damira Khatam, Re-Inventing Arbitration: How Expanding the Scope of Arbitration Is Re-Shaping Its Form and Blurring the Line Between Private and Public Adjudication, 18 Nev. L.J. 381, 396–97, 399, 403, 406–07 (2018).

  21. Alfred L. Brophy, Introducing Applied Legal History, 31 Law & Hist. Rev. 233, 233, 235 (2013) (noting applied legal history is used as a means of “normaliz[ing] . . . a contemporary practice by showing that it has . . . antecedents.”). Although applied legal history has been described as “an emerging and sometimes controversial trend . . . to speak to contemporary issues,” id. at 223, comparative legal scholars have been using this technique for decades. See James Gordley, Comparative Law and Legal History, in The Oxford Handbook of Comparative Law 754, 758–63 (Mathias Reimann & Reinhard Zimmermann eds., 2006); Mathias Reimann & Alain Levasseur, Comparative Law and Legal History in the United States, 46 Am. J. Comp. L. (Supplement) 1, 4 (1998).

  22. William Ewald, Comparative Jurisprudence (I): What Was It Like to Try a Rat? 143 U. Pa. L. Rev. 1889, 2147 (1995); see also Strong, supra note 18, at 539 (discussing cognitive distortions and implicit biases).

  23. See William W. Fisher III, Texts and Contexts: The Application to American Legal History of the Methodologies of Intellectual History, 49 Stan. L. Rev. 1065, 1103 (1997) (“[T]he objective of . . . legal historians in particular should be to destabilize rather than reinforce Americans’ nationalism and exceptionalism.”); infra Part III.

  24. See Yarn, supra note 15, at 1012–13 (discussing how the elimination of diverse procedures in dispute resolution can be problematic).

  25. See, e.g., Matthew J. Festa, Applying a Usable Past: The Use of History in Law, 38 Seton Hall L. Rev. 479, 481–84 (2008) (cataloging various criticisms); William M. Wiecek, Clio as Hostage: The United States Supreme Court and the Uses of History, 24 Cal. W. L. Rev. 227, 227 (1988) (“[T]he Supreme Court is the only institution in human experience that has the power to declare history . . . .”). This is not to say that good scholarship does not exist in this area of law. See, e.g., Alfred L. Brophy, When History Mattered, 91 Tex. L. Rev. 601, 601 (2013) (book review) (lauding recent publication on legal history).

  26. See Festa, supra note 25, at 489–90.

  27. Ian R. Macneil, American Arbitration Law 170 (1992) (footnotes omitted).

  28. See Festa, supra note 25, at 485 (“[R]equiring lawyers to produce academic-quality historiography would prove difficult to achieve in practice and would not necessarily be that helpful to the decisionmakers in actual legal controversies.”).

  29. See Gary Lawson, No History, No Certainty, No Legitimacy . . . No Problem: Originalism and the Limits of Legal Theory, 64 Fla. L. Rev. 1551, 1553, 1560 (2012).

  30. This analysis is linked in ways to discussions about the principle of “procedural jus cogens” (or ius cogens) that is currently developing in the international realm. See S.I. Strong, General Principles of Procedural Law and Procedural Jus Cogens, 122 Penn St. L. Rev. 347, 390–91 (2018) (explaining that jus cogens “is universally understood to mean a tightly circumscribed set of non-derogable norms applicable to all states”).

  31. See Brunet, supra note 12, at 114–15; Carole J. Buckner, Due Process in Class Arbitration, 58 Fla. L. Rev. 185, 210–14 (2006); Graves, supra note 12, at 254; Roger J. Perlstadt, Article III Judicial Power and the Federal Arbitration Act, 62 Am. U. L. Rev. 201, 239 (2012); Richard C. Reuben, Constitutional Gravity: A Unitary Theory of Alternative Dispute Resolution and Public Civil Justice, 47 UCLA L. Rev. 949, 989–1104 (2000). See generally Jean R. Sternlight, Rethinking the Constitutionality of the Supreme Court’s Preference for Binding Arbitration: A Fresh Assessment of Jury Trial, Separation of Powers, and Due Process Concerns, 72 Tul. L. Rev. 1 (1997); Maureen A. Weston, Universes Colliding: The Constitutional Implications of Arbitral Class Actions, 47 Wm. & Mary L. Rev. 1711, 1745–67 (2006); S.A. de Smith, The Right to a Hearing in English Administrative Law, 68 Harv. L. Rev. 569, 569 (1955).

  32. See Konrad Zweigert & Hein Kötz, Introduction to Comparative Law 34 (Tony Weir trans., Oxford Univ. Press & J.C.B. Mohr (Paul Sieback) 3d rev. ed. 1998); Ralf Michaels, The Functional Method of Comparative Law, in The Oxford Handbook of Comparative Law, supra note 21, at 339, 340.

  33. Legal historians have supported the use of functionalism as a comparative methodology. See Gordley, supra note 21, at 762–63, 772–73.

  34. See Sarah Rudolph Cole, Arbitration and State Action, 2005 BYU L. Rev. 1, 5; Reuben, supra note 31, at 989–1104; Hensler & Khatam, supra note 20, at 395–408; Resnik, supra note 8, at 2806–07; Matthew A. Shapiro, Delegating Procedure, 118 Colum. L. Rev. 983, 988 (2018) (“The claim that ordinary civil litigation pervasively delegates state power conflicts with commonly held impressions of our civil justice system. In fact, civil litigation is a public institution administered largely by private parties.” (footnote omitted)).

  35. Zweigert & Kötz, supra note 32, at 8.

  36. Frederic William Maitland, Why the History of English Law Is Not Written, in I The Collected Papers of Frederic William Maitland 480, 488 (H.A.L. Fisher ed., 1911); see also Michele Graziadei, Comparative Law, Legal History, and the Holistic Approach to Legal Cultures, 7 Zeitschrift für Europäisches Privatrecht [ZEuP] 531, 531–43 (1999) (Ger.).

  37. Zweigert & Kötz, supra note 32, at 36.

  38. Gordley, supra note 21, at 760–62.

  39. See Zweigert & Kötz, supra note 32, at 41; Gordley, supra note 21, at 763.

  40. See Zweigert & Kötz, supra note 32, at 44–45.

  41. See Michael Halberstam, The American Advantage in Civil Procedure? An Autopsy of the Deutsche Telekom Litigation, 48 Conn. L. Rev. 817, 830–31 (2016).

  42. See id.

  43. Questions still exist as to whether arbitration should be considered a supplement to or substitute for litigation. See 1 Larry E. Edmonson, Domke on Commercial Arbitration pt. 1, § 1:1, at 1-4 (3d ed. Supp. 2019) (“[Arbitration] coexists with court procedure as an adjunct and part of the American system of administering justice.”); id. § 1:3, at 1-14 to 1-15 (indicating that early precedent distinguished between commercial arbitration as a substitute for litigation and labor arbitration as a substitute for avoiding industrial strife, but suggesting that these distinctions may no longer apply); Jeffrey W. Stempel, Keeping Arbitrations from Becoming Kangaroo Courts, 8 Nev. L. J. 251, 260 (2007) (“[A]rbitration is a substitute for adjudication by litigation . . . .”); Jean R. Sternlight, Creeping Mandatory Arbitration: Is It Just?, 57 Stan. L. Rev. 1631, 1673 (2005) (concluding arbitration is not the same as litigation).

  44. See S.I. Strong, Reasoned Awards in International Commercial Arbitration: Embracing and Exceeding the Common Law-Civil Law Dichotomy, 37 Mich. J. Int’l L. 1, 15–20 (2015) [hereinafter Strong, Reasoned Awards]; S.I. Strong, Writing Reasoned Decisions and Opinions: A Guide for Novice, Experienced, and Foreign Judges, 2015 J. Disp. Resol. 93, 101–06 [hereinafter Strong, Reasoned Decisions].

  45. See Zweigert & Kötz, supra note 32, at 46–47.

  46. Id. at 47.

  47. Id.

  48. See id.

  49. See H. Patrick Glenn, Legal Traditions of the World 162 n.122, 173 n.159 (5th ed. 2014).

  50. See generally Lisa Bernstein, Private Commercial Law in the Cotton Industry: Creating Cooperation Through Rules, Norms, and Institutions, 99 Mich. L. Rev. 1724, 1725–45 (2001) (describing a private legal system as including procedural rules, substantive rules, adjudicative approaches, and enforcement mechanisms); Barak D. Richman, Norms and Law: Putting the Horse Before the Cart, 62 Duke L.J. 739, 741 (2012).

  51. See Amy J. Schmitz, Ending a Mud Bowl: Defining Arbitration’s Finality Through Functional Analysis, 37 Ga. L. Rev. 123, 144 (2002).

  52. See Edmonson, supra note 43, § 1:1, at 1-2 to -6, § 1:3, at 1-12, 1-14 to -15; Strong, supra note 20, at 4–5.

  53. See Christopher R. Drahozal, Nonmutual Agreements to Arbitrate, 27 J. Corp. L. 537, 540 (2002); Amy J. Schmitz, Legislating in the Light: Considering Empirical Data in Crafting Arbitration Reforms, 15 Harv. Negot. L. Rev. 115, 139–40 (2010).

  54. Early British history can be broken down into the following periods: prehistoric Britain (prehistory to 43 C.E.); Roman Britain (44–407 C.E.); sub-Roman Britain (407–587 C.E.); and medieval Britain (587–1485 C.E.), which includes part of the early medieval period, also known as Anglo-Saxon Britain (430–1066 C.E.) and the late medieval period, including Norman Britain (1066–1154 C.E.) and the Middle Ages (1154–1485 C.E.). Later periods included the Tudors (1485–1603 C.E.); the Civil War and Revolution (1603–1714 C.E.); the Empire (1715–1837 C.E.); and the Victorian era (1837–1901 C.E.). See British History, BBC, http://www.bbc.co.uk/history/british/ [https://perma.cc/5FEM-ZZLK] (last visited Mar. 1, 2020); British History Timeline, BBC, http://www.bbc.co.uk/history/british/timeline/ [https://perma.cc/P74R-PVNA] (last visited Mar. 1, 2020); British PreHistory, BBC, http://www.bbc.co.uk/history/ancient/british_prehistory/ [https://perma.cc/46G3-QB4L] (last visited Mar. 1, 2020). The common law legal system began to be established in the Middle Ages, about a century and a half after the Norman conquest of 1066. See Glenn, supra note 49, at 252.

  55. Other legal historians have adopted a similar methodology. See Valerie A. Sanchez, Towards a History of ADR: The Dispute Processing Continuum in Anglo-Saxon England and Today, 11 Ohio St. J. on Disp. Resol. 1, 2 (1996) (discussing Anglo-Saxon Britain); Yarn, supra note 15, at 940 (discussing the Middle Ages).

  56. See Peter Goodrich, Doctor Duxbury’s Cure: Or, a Note on Legal Historiography, 15 Cardozo L. Rev. 1567, 1572 (1994).

  57. See, e.g., Robin Fleming, Domesday Book and the Law: Society and Legal Custom in Early Medieval England 13 (1998) (discussing courts in early Medieval England); Sanchez, supra note 55, at 2 (discussing Anglo-Saxon Britain); David J. Seipp, Trust and Fiduciary Duty in the Early Common Law, 91 B.U. L. Rev. 1011, 1011 (2011) (setting the early common law between the twelfth and sixteenth century for purposes of trust law); Yarn, supra note 15, at 940 (discussing the Middle Ages).

  58. See Carli N. Conklin, The Origins of the Pursuit of Happiness, 7 Wash. U. Juris. Rev. 195, 223–24, 232 (2015) (noting that Blackstone believed law students should be familiar with the Anglo-Saxon common law as a foundation for contemporary understanding of law).

  59. Bernadette Meyler, Towards a Common Law Originalism, 59 Stan. L. Rev. 551, 582 (2006).

  60. Id. at 569–70 (noting John Adams held similar views).

  61. Frederick Pollock, English Law Before the Norman Conquest, 14 L.Q. Rev. 291, 291 (1898); see also 3 W.J. Corbett, Cambridge Mediaeval Hist. 405–408, as reprinted in Readings on the History and System of the Common Law 50–51 (Roscoe Pound & Theodore F.T. Plucknett eds., 3d ed. 1927).

  62. Pollock, supra note 61, at 291.

  63. See Sanchez, supra note 55, at 4.

  64. See Hart v. Massanari, 266 F.3d 1155, 1163 (9th Cir. 2001); Meyler, supra note 59, at 582, 589. Contrary to the beliefs of many originalists, the substantive common law cannot be understood as a consistent body of rules that is divorced from procedure. See Meyler, supra note 59, at 555–56 (critiquing modern originalism and noting that “the common law” could not be considered clear by the eighteenth century, which was relatively late in its development).

  65. Meyler, supra note 59, at 556.

  66. See infra Part III (discussing jurisdictional considerations, procedural issues, and precedent).

  67. See Oliver Brand, Conceptual Comparisons: Towards a Coherent Methodology of Comparative Legal Studies, 32 Brook. J. Int’l L. 405, 414 (2007).

  68. See id. at 433 (discussing the elimination of biases in functionalism).

  69. David Millon, Positivism in the Historiography of the Common Law, 1989 Wis. L. Rev. 669, 669.

  70. Id. at 669–70.

  71. See Strong, supra note 18, at 539 (discussing how unconscious biases affect the perception of arbitration in the international realm); S.I. Strong, Defining the Litigation Default, 37 Civ. Just. Q. 463, 468 (2018) (discussing how unconscious biases affect the perception and use of court-ordered mediation in England and Wales).

  72. Millon, supra note 69, at 672.

  73. Id.

  74. See William Ewald, The Jurisprudential Approach to Comparative Law: A Field Guide to "Rats," 46 Am. J. Comp. L. 701, 702 (1998).

  75. See Zweigert & Kötz, supra note 32, at 35.

  76. See Bales, supra note 3, at 333; Carbonneau, supra note 8, at 398 (noting that consumers and employees are free to avoid arbitration by declining to enter into a contractual arrangement with retailers and employers, even if the weaker party cannot individually negotiate the terms of the arbitration agreement); Stempel, supra note 43, at 253–54; Sternlight, supra note 43, at 1631–32; Jean Sternlight, Disarming Employees: How American Employers Are Using Mandatory Arbitration to Deprive Workers of Legal Protection, 80 Brook. L. Rev. 1309, 1310 (2015).

  77. See Sternlight, supra note 43, at 1631–32; Sternlight, supra note 76, at 1310. Psychologists and behavioral economists have found that the existence of a default can create an implicit or unconscious bias in favor of the default position, which may explain some of the ongoing challenges to consumer and employment arbitration despite empirical evidence supporting the legitimacy of the procedure. See Strong, supra note 18, at 560–62; Strong, supra note 71, at 468.

  78. See U.S. Const. art. III; Strong, supra note 18, at 561–62; Strong, supra note 71, at 470–72.

  79. See Brendan Edgeworth, Access to Justice in Courts and Tribunals Compared–Residential Tenancy Disputes in Sydney (1971-2004), 27 Civ. Just. Q. 179, 180 (2008). Sometimes the third wave is characterized as the “community justice movement.” See Hensler, supra note 3, at 170.

  80. See Am. Bar Ass’n, Report of Pound Conference Follow-Up Task Force, 74 F.R.D. 159, 165–66, 169 (1976); William H. Erickson, The Pound Conference Recommendations: A Blueprint for the Justice System in the Twenty-First Century, 76 F.R.D. 277, 283–84 (1977); Jacqueline Nolan-Haley, Does ADR’s “Access to Justice” Come at the Expense of Meaningful Consent?, 33 Ohio St. J. on Disp. Resol. 373, 380 (2018); Thomas O. Main, ADR: The New Equity, 74 U. Cin. L. Rev. 329, 334 (2005) (discussing the Pound Conference). This latter characterization is an example of faulty history, since arbitration actually dates back to at least the Middle Ages. See supra note 15; infra note 145 and accompanying text.

  81. See Nolan-Haley, supra note 80, at 380.

  82. See id. at 374 (suggesting the contemporary term “access to justice” encompasses, among other things, the concept that “potential litigants from all economic backgrounds have meaningful access to the legal system”); Glenn, supra note 49, at 247–48; Harold J. Berman, Courts and the Comparative Historical Method, 91 Yale L.J. 383, 387 (1981); 3 William Blackstone, Commentaries *272, as reprinted in Readings on the History and System of the Common Law, supra note 61, at 64 (discussing need for an “original writ” (i.e., the “king’s writ”) in some types of actions, whereas a “plaint” would suffice in other situations); Ranulf de Glanvill, De Legibus et Consuetudinibus Regni Angliae bk. I, ch. 3, 4 (1187–1189), as translated in Readings on the History and System of the Common Law, supra note 61, at 87 (discussing the distinction between various types of civil pleas); 1 W.S. Holdsworth, A History of English Law 219–22 (1922), as reprinted in Readings on the History and System of the Common Law, supra note 61, at 99 (discussing various types of jurisdiction, including concurrent jurisdiction between the King’s Bench and the court of Common Pleas). The early court of equity began to develop near the end of the early common law period and was eventually formalized as the Court of Chancery at the end of the fifteenth century. See Seipp, supra note 57, at 1017.

  83. 2 Richard Burn, Ecclesiastical Law 30 (3d ed. 1775), as reprinted in Readings on the History and System of the Common Law, supra note 61, at 69.

  84. Pollock, supra note 61, at 296 (“Anglo-Saxon courts had got beyond this most early stage, but not very far beyond it.”).

  85. See Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991) (citing United States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32, 34 (1812)) (defining inherent powers as those that “cannot be dispensed with . . . because they are necessary to the exercise of all others”); Daniel J. Meador, Inherent Judicial Authority in the Conduct of Civil Litigation, 73 Tex. L. Rev. 1805, 1805–06 (1995) (discussing the inherent power of U.S. courts); Pollock, supra note 61, at 296; Jonathan Rose, The Ambidextrous Lawyer: Conflict of Interest and the Medieval and Early Modern Legal Profession, 7 U. Chi. L. Sch. Roundtable 137, 148 (2000).

  86. See Pollock, supra note 61, at 296.

  87. See id.

  88. See Fleta bk. ii, ch. 34 (1290), translated in Readings on the History and System of the Common Law, supra note 61, at 89–90.

  89. Id.

  90. See Paul Brand, Judges and Judging 1176-1307, in Judges and Judging in the History of the Common Law and Civil Law: From Antiquity to Modern Times 3, 7 (Paul Brand & Joshua Getzler eds., 2012). Prior to that date, royal justice was provided not only in the six judicial circuits but also in the “king’s court at Westminster.” Id. at 5.

  91. Britton, bk. I, ch. 1 (1290), as translated in Readings on the History and System of the Common Law, supra note 61, at 90–91.

  92. An interesting question that is somewhat beyond the scope of the current Article is whether early common law courts characterized their jurisdiction as a right or a duty. See Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Legal Reasoning, 26 Yale L.J. 710, 710 (1917) (providing a chart of jural opposites and jural correlatives). Some would say that arbitral jurisdiction reflects a type of mandatory duty, even if it is a duty that is imposed by contract. See Josh B. Martin, Contractualists Versus Jurisdictionalists: Who is Winning the Mandatory Law Debate in International Commercial Arbitration?, 27 Am. Rev. Int’l Arb. 475, 477 (2016).

  93. See Fleta, supra note 88; see also Brand, supra note 90, at 8.

  94. See 2 Frederick Pollock & Frederic William Maitland, The History of English Law Before the Time of Edward I, bk. II, ch. 9, § 1, as reprinted in Readings on the History and System of the Common Law, supra note 61, at 398; see also William E. Nelson, The Reform of Common Law Pleading in Massachusetts 1760-1880: Adjudication as a Prelude to Legislation, 122 U. Pa. L. Rev. 97, 97–98, 127 (1973) (discussing the original system of writs in England and the innovations of the Field Code in the United States); 3 Blackstone, supra note 82, at 64–65 (noting the writs originated with the king and recognizing that the absence of a remedy under a writ meant the absence of a right).

  95. See Brand, supra note 90, at 18; Nelson, supra note 94, at 97–98.

  96. See Hall St. Assoc., L.L.C. v. Mattel, Inc., 552 U.S. 576, 585–86 (2008); Sternlight, supra note 43, at 1647–48.

  97. See Strong, supra note 18, at 561–62 (noting unconscious psychological biases in favor of legal defaults); Strong, supra note 71, at 468 (same).

  98. See Pollock, supra note 61, at 296; see also supra note 84 and accompanying text.

  99. See Brand, supra note 90, at 7–8; Fleta, supra note 88.

  100. See Julian D.M. Lew et al., Comparative International Commercial Arbitration 74–79 (2003) (discussing the contractual and jurisdictional theories of arbitration); S.I. Strong, Discovery Under 28 U.S.C. § 1782: Distinguishing International Commercial Arbitration and International Investment Arbitration, 1 Stan. J. Complex Litig. 295, 348–49 (2013).

  101. See Strong, supra note 100, at 348­–49.

  102. See id.

  103. See 9 U.S.C. §§ 1–307 (2018); Strong, supra note 100, at 348–49.

  104. See Strong, supra note 100, at 348.

  105. See id.; see also supra note 91 and accompanying text. Concurrent jurisdiction in contemporary courts can exist not only between U.S. state and federal courts but also between different federal courts or between different courts within the state system. See Haywood v. Drown, 556 U.S. 729, 734–35 (2009); Strong, supra note 100, at 348.

  106. Professor Main has written that:

    The system of [alternative dispute resolution] stands in [the] breach created by the merger of Law and Equity. ADR offers an alternative system for relief from the hardship created by the substantive and procedural law of formal adjudication. Moreover, the freedom, elasticity, and luminance of ADR bear a striking resemblance to traditional Equity [in early England], offering relaxed rules of evidence and procedure, tailored remedies, a simpler and less legalistic structure, [and] improved access to justice . . . .

    Main, supra note 80, at 330, 351 n.88.

  107. See Chartered Inst. of Arbitrators, Jurisdictional Challenges 5, 14 (2016), https://www.ciarb.org/media/4192/guideline-3-jurisdictional-challenges-2015.pdf [https://perma.cc/ZTR4-F9A2].

  108. 9 U.S.C. § 7; Stolt-Nielsen S.A. v. Celanese AG, 430 F.3d 567, 577–80 (2d Cir. 2005); Hay Group, Inc. v. E.B.S. Acquisition Corp., 360 F.3d 404, 407 (3d Cir. 2004).

  109. See 9 U.S.C. § 4; Sink v. Aden Enters., Inc., 352 F.3d 1197, 1199 (9th Cir. 2003); Polin v. Kellwood Co., 103 F. Supp. 2d 238, 268 (S.D.N.Y. 2000); Am. Arbitration Ass’n, Consumer Arbitration Rules r. 39 (2016) [hereinafter AAA Consumer Arbitration Rules], https://www.adr.org/sites/default/files/Consumer Rules.pdf [https://perma.cc/V7JF-Z34X]; Am. Arbitration Ass’n, Emp’t Arbitration Rules r. 29 (2016) [hereinafter AAA Employment Arbitration Rules], https://www.adr.org/sites/default/files/Employment Rules.pdf [https://perma.cc/46ZE-75S8]; Paul Bennett Marrow, Are Rules Allowing Arbitral Sanctions a Mirage?, 88 N.Y. St. B. Ass’n J. 28, 29