New issues raised in Hall Street

The Supreme Court on Friday morning released this order directing the parties in Hall Street Assoc. v. Mattel (06-989) to file supplemental briefs on three issues. More on this case can be found here at SCOTUSwiki.

The new issues to be briefed are:

(1) Does authority exist outside the Federal Arbitration Act (FAA) under which a party to litigation begun without reliance on the FAA may enforce a provision for judicial review of an arbitration award?

(2) If such authority does exist, did the parties, in agreeing to arbitrate, rely in whole or part on that authority?

(3) Has petitioner in the course of this litigation waived any reliance on authority outside the FAA for enforcing the judicial review provision of the parties’ arbitration agreement?

Both sides’ briefs are due at 2 PM on Nov. 27, with reply briefs due on Dec. 3.

UPDATE 2:20 p.m. by Lyle Denniston

The case was argued on Nov. 7, and presumably was discussed and was assigned for opinion-drafting at the Conference on Nov. 9.  The new questions, while they apparently were found to be potentially significant early in the drafting process, actually echo questions that Chief Justice Joohn G. Roberts, Jr., and Justice Stephen G. Breyer had pursued at the oral argument.

With Hall Street’s attorney Carter G. Phillips at the lectern, the Chief Justice noted that the case had been brought to the Court based on a claim that the Federal Arbitration Act itself allowed a federal court to enforce an agreement among two contracting parties to have expanded judicial review of an arbitration award — broader than the limited review that FAA ordinarily provides.

But, the C;hief Justice wondered, Hall Street perhaps could be seeking through “an ordinary contract action” to have the agreement enforced.  “You’re asking us to bring it under the Federal Arbitration Act,” Roberts commented. Phillips disagreed, saying Hall Street was simply trying to get the agreement enforced, and the Ninth Circuit had frustrated that under the FAA.

Justice Breyer then said that, if the Court were to find that the FAA did not preclude such an agreement, where would it look — as an alternative source of law — for authority to make such an agreement. The first source, Breyer said, might be state law, but the Court would then have to ask the state court if such a contract were valid under its law. Another source, Breyer went on, would be a federal judge’s authority to manage the case before the court.  But that would not be allowed because of the value of the interests at stake, he said.

“Now, I don’t know the answer to either of those questions,” Breyer said. And that, he said, admitting he was exaggerating, might turn this simple case into “the case of the century.” Phillips proceeded to answer that there were “general common law standards” that might be brought to bear.

The three questions posed on Friday appear to be traceable directly back to exchanges like that. The first question is whether there is such authority beyond FAA, the second is whether the parties had relied upon it, and the third is, if there is such authority, whether Hall Street had waived any reliance on it.

The fact that the Chief Justice and Roberts had pursued questions along these lines at oral argument does not necessarily mean that either of them has the drafting assignment.