Alan Scott Rau recently posted his critique of the Supreme Court’s Hall Street Associates v. Mattel decision.  Perhaps, though, to call the article, entitled “Fear of Freedom,” a “critique” is to understate the fervency of Rau’s views.  It’s more like a well-organized, carefully-crafted rant.  Using words like “deeply unsatisfactory,” “appall[ing],” “hesitant and muddy,” and “grotesque,” Rau’s candor about his impressions of the opinion are refreshing and just about as entertaining as a law review article about contractual modification of judicial review of arbitral awards can be.  At one point, he even declared that “God only knows what [one passage of Justice Souter’s opinion] is intended to mean…”  Coming from a student, I’m not sure how I would read this article, but coming from a leading scholar, it’s just plain fun.

Rau’s view (although technically not his conclusion, I suppose, since it appears on page 17 of 43) is summarized by this sentence:

“The Hall Street opinion must, then, represent a new low in context-free, policy-free, abstract, non-functional decision-making.”

Instead, Rau favors viewing FAA section 10’s provisions as a set of default rules, around which parties should be free to contract.

I have not yet reached a final conclusion, myself, about Hall Street and its implications.  I am generally in favor of treating rules as defaults and permitting parties to contract around them–provided courts can figure out what it means really to “contract.”  (For example, I’m not persuaded that the many adhesive clauses to which consumers and employees are regularly exposed deserve the deferential treatment they currently enjoy.)  But particularly in the commercial arbitration setting, I can see strong arguments in favor of Rau’s position.  And I see even stronger arguments in favor of his manner of writing.

Michael Moffitt