Scotus blog reported that the parties in Hall Street filed their supplemental briefing. See http://www.scotusblog.com/wp/uncategorized/new-layer-of-dispute-on-arbitration/#more-6207 for a story on this topic as well as a link to the briefs. The parties have until Monday, December 3rd to file reply briefs. While I am not certain that anyone other than Justice Roberts was behind the supplemental briefing request, Hall Street makes a strong argument as to why the parties’ agreement to expand judicial review should be enforceable even if the Court determines that the FAA does not apply. Among other arguments, Hall Street emphasizes that the district court used its inherent authority to authorize arbitration in this case. This argument, which I made elsewhere (51 Hastings Law Journal 1199 (2000)), is convincing (at least to me!). Mattel’s brief focuses on the FAA as the governing authority in a case like this.

I think the supplemental briefing questions identify a flaw in the Court’s selection of Hall Street as the case to use to decide the validity of party agreements to expand judicial review of arbitration awards. Unlike the typical case, the district court in Hall Street agreed that the parties should go to arbitration, followed by judicial review in the district court. Normally, the parties would not consult the district court when making their agreement. My worry is that the Court will use this ground to issue a narrow decision that may not resolve the question for those parties who are not in court at the time they agree to expanded judicial review of the arbitration award (although such a decision, assuming it validated the district court’s action, might give parties good reason to think that other courts would approve party requests, so long as they were familiar ones). I am comforted by the fact that only Chief Justice Roberts focused on this issue during oral argument.

Sarah Cole