I continue to think that efficiency interests often drive the Supreme Court’s arbitration jurispridence. Moreover, the court recognized that substantial judicial review is fundamentally inconsistent with “arbitration’s essential virtue of resolving disputes straightaway.” See P. 11, where the court also says “Any other reading opens the door to the full-bore legal and evidentiary appeals that can render infomral arbitration a mere prelude tot he more cumbersome and time-consuming judicial review process and bring arbitration theory to grief in post-arbitration process.” This, to me, is one of the more telling parts of the opinion.

As to other non-statutory grounds, I see the court’s decision as foreclosing all but “manifest disregard.” While the court acknowledges it doesn’t know what it means, it does leave the door open for a text-based interpretation.

To me, the more interesting part of the opinion was the last part, Section IV, where the court invited litigation on the questions of whether state statutory or common law could provide a basis to uphold the agreement, or whether federal district courts could engage in judicial review of an arbitration award as a function of their inherent powers under Rule 16.

This strikes me as ill-advised, and one that raises a host of problems. Is the court here trying to open up state arbitration law, and if so on what issues? Do we really need another circuit court split on the inherent powers question? Would a court decision accepting the inherent powers argument open the door for greater federal judicial supervision of the arbitration process as well as the result? Would all of this further “legalize” arbitration so as to undermine its attractiveness as an alternative to trial.

One step forward, two steps back.

The clearest purpose I can see for the ruling is an institutional perogative of the judicial branch which does not want to be compelled to provide a la carte justice on demand.
What’s interesting about the hypothesis ohwilleke offers is that courts ARE compelled to provide justice on demand. (Or I suppose more technically, on pleading.) That leaves only the “a la carte” aspect as potentially problematic.

And I guess I’m not sure I fully understand the underlying nature of the objection to the idea that courts might be made available in customized ways.

For more heresy on the subject, see Michael Moffitt, Customized Litigation: The Case for Making Civil Procedure Negotiable, 75 George Washington Law Review 461 (2007).

Michael Moffitt