Context, Properties, and Constitutionality of Nonconsensual Arbitration: A Study of Four Systems, The

The purpose of this article is to analyze the context, properties, and constitutionality of these instances of nonconsensual arbitration. Although FIFRA data arbitration and the constitutional challenges to which it has been subjected will receive the most extensive study, the other examples also will be explored in some detail. It is first necessary, however, to lay some groundwork. Each of the nonconsensual arbitration systems to be studied, including FIFRA data arbitration, draws the inspiration for its design and operation from contract-based commercial arbitration.

To aid in the understanding of the former, Part II discusses the fundamental nature and legal framework of the latter. Part III examines the emergence of a clearly growing trend toward nonconsensual arbitration, and Part IV analyzes the use of court-annexed arbitration for private-claims resolution. Parts V and VI explore multiemployer pension plan withdrawal liability arbitration and commodity futures broker-customer arbitration, respectively, as two important expressions of the trend in the regulatory context. In Parts IV, V, and VI, the context, properties, and constitutionality of the three systems are examined in some depth.

Part VII analyzes FIFRA data compensation arbitration in detail. In order to present the context and properties of this arbitration system properly, Part VII thoroughly explores the complex regulatory scheme of which it is an integral part. This part then studies the constitutional concerns generated by the program and its operation. Part VIII concludes the article by briefly reflecting upon the four systems and inquiring whether there remain any meaningful constitutional limitations on experiments with nonconsensual dispute resolution, particularly in the regulatory domain.

After considering some of these experiments that at first blush seemed to test the constitutional margin, we must ask whether this margin was ever where we may have supposed it to be and, if so, whether it has moved.