Originally uploaded at SSRN.


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).