PETER B.
RUTLEDGE
ABSTRACT This
Article offers the first systematic treatment of the relationship between
commercial arbitration and testamentary arbitration.
(By testamentary arbitration, I mean an arbitration
clause contained in a will requiring beneficiaries to resolve differences over
the estate by means of an enforceable decision by a private party rather than
judicial resolution in a probate court.)
Recent scholarship and jurisprudence have questioned
the enforceability of these arrangements as incompatible with the requirement
of a written "agreement" between parties to the arbitration.
Contrary to these views, close examination of the
historical record of testamentary arbitration leading to the Federal
Arbitration Act's enactment reveals a rudimentary set of doctrines not unlike
those found in modern American commercial arbitration jurisprudence.
These doctrines cover topics such as the allocation of
authority between courts and arbitrators, as well as judicial review of
arbitration awards.
These findings carry important implications for both
testamentary arbitration and commercial arbitration. They respond to critics
alleging that testamentary arbitration cannot be sustained absent express
legislative fixes in state statutes.
They also support the trend, found in
recent Supreme Court jurisprudence, of cross-fertilizing arbitration precedent
from one field (like labor or investment arbitration) into another (like
commercial arbitration).
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