David Horton

Arbitration and Inalienability: A Critique of the Vindication of Rights Doctrine

Courts and scholars have long struggled to harmonize the Federal Arbitration Act and other federal statutes. Currently, judges invalidate arbitration clauses that prevent a plaintiff from vindicating her public law rights. This principle, the vindication of rights doctrine, is an arbitration-specific application of the statutory waiver rule: the idea that parties cannot prospectively waive congressionally-created entitlements. However, because the policy basis of the statutory waiver rule has never been clear, jurisdictions disagree about how to implement the vindication of rights doctrine. In this contribution to the Kansas Law Review’s Perspectives on the Current State of Arbitration Law Symposium, I seek to understand the statutory waiver rule and the vindication of rights doctrine by situating them within a larger context: the debate over inalienability. Infants, sexual services, body parts, and basic civic duties cannot be exchanged for consideration. I consider whether common justifications for these fissures in the market — concern about information failures, externalities, and commodification — can explain why future federal statutory claims are immune from freedom of contract. I conclude that, to some degree, each rationale for inalienability also underlies the statutory waiver rule and the vindication of rights doctrine. Nevertheless, I argue that these principles are best explained as an attempt to preserve the distinctive qualities of congressional lawmaking in an era where private parties exercise legislative-like power. I claim that courts can further this goal by nullifying one-sided arbitration clauses that do not serve arbitration-related purposes and thus are blatant attempts to rewrite the public laws.