The Rise in Judicial Hostility to Arbitration: Revisiting Hall Street Associates

When the United States Supreme Court granted certiorari in Hall Street Associates,LLC v. Mattel, Inc., commentators expected the Court to resolve the split among the federal circuits regarding the validity and enforceability of \u27opt-in\u27 agreements.Since the late 1990s, these agreements had become a means through which contracting parties could obtain enhanced judicial supervision of arbitral awards by providing for judicial review of the merits of arbitrator rulings. While commentators got a resolution to the split, they received a great deal more than they had been promised. Stylistic opacity made the opinion in Hall Street somewhat inaccessible. In fact, as rendered, the opinion may be more significant for what it omits than for what it actually says. The justices envisage arbitration as an instrument of practical policy, and they alter, repair, and modify the doctrine to maintain the efficacy of its application. Arbitration is not a basis upon which to conduct lofty juridical debates. Hall Street Associates reintroduces balance and stability to the U.S. law of arbitration. By emphasizing the importance of expedited enforcement proceedings, the Hall Street Court solidifies judicial support for the operation of the arbitration process and its outcomes. It thereby-at least, arguably-fosters the autonomy of the arbitration process. The law either allows arbitration to flourish on its own terms or crushes the process with its conventional law agenda. The possible breach in the edifice of law is ominous and portends an undecided future and an unresolved destiny for arbitral adjudication