I recently finished writing an article exploring the parallel development of plea bargaining and arbitration in the US: “A Judicial Odyssey: Arbitration, Plea Bargaining, and the Return of Judicial Legitimacy,” which the Pepperdine Dispute Resolution Law Journal will publish next year. Here’s an abstract, and as well as a link to a draft version of my article.
Plea bargaining from criminal law and arbitration from civil law are rarely studied together, but both have followed a strikingly similar path. Once viewed with deep judicial skepticism, both became favored alternatives to trial, aided by Supreme Court decisions that expanded their reach and contributed to the decline of the jury trial.
This Article argues that the Supreme Court is now beginning to reverse course and that its recent decision in Hunter v. United States helps explain why. In Hunter, the Court held that a defendant’s promise, in a plea-bargaining agreement, not to appeal the judge’s sentencing is not valid when enforcing the promise would cause a miscarriage of justice. Although Hunter concerns plea bargaining, its reasoning reveals a broader institutional principle: courts have an independent interest in ensuring that privately negotiated alternatives to trial do not undermine judicial legitimacy, authority, or the rule of law.
Viewed through this lens, recent Federal Arbitration Act decisions reveal a coherent pattern. The Roberts Court has increasingly narrowed arbitration’s favored status, emphasized judicial supervision, and strengthened protections surrounding access to court. Hunter provides an organizing principle for understanding recent arbitration cases. By providing a framework for predicting arbitration law’s future direction, Hunter also helps resolve longstanding disputes about arbitral power, judicial review, and contracting overreach.