Creating and Reinforcing Due Process Norms Through the Procedural Laboratory of Arbitration

Imre S. Szalai, Associate Professor of Law at the Loyola University New Orleans College of Law has written “A Constitutional Right to Discovery? Creating and Reinforcing Due Process Norms Through the Procedural Laboratory of Arbitration,” Pepperdine Dispute Resolution Law Journal, Forthcoming. In his article, Professor Szalai examines the potential role of arbitration in civil court discovery procedures.

Here is the abstract:

Are discovery procedures in the civil context — which have become the norm in modern litigation — constitutionally required? Would Congress or states, for example, violate the due process clause by banning or severely restricting the broad use of discovery in civil cases? If no constitutional right to discovery exists in criminal cases, which can involve severe deprivations of life and liberty, then surely it should follow that no constitutional right to discovery exists in civil cases. However, the underpinnings for a due process-like norm involving a right to discovery in the civil context have begun to take root. Where can one observe such a right beginning to emerge? In the laboratory or petri dish of procedural experimentation: arbitration.

This article explores an overlooked dynamic between arbitration and the more formal court system. This article’s thesis is that arbitration can help define and reinforce due process norms applicable in court, and a due process-like norm regarding discovery is beginning to develop. Courts often review arbitration agreements for fairness, and through this judicial review, courts have developed a body of law discussing and defining whether certain procedures (or the lack thereof) violate fairness norms in connection with the resolution of a particular dispute. Through this body of law exploring procedural fairness, one can identify emerging procedural norms, such as a right to discovery in certain situations. Through the procedural creativity and experimentation that occurs in arbitration, and through the judicial review of such arbitral procedures, arbitration creates countless opportunities to explore and define what constitutes the minimum bundle of procedures required for a fair hearing.

This and other scholarly papers authored by Professor Szalai may be downloaded for free from the Social Science Research Network.

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