Comments on: Pushing, or Perhaps Ripping, the Arbitration Envelope http://www.concurringopinions.com/archives/2006/08/pushing_or_perh.html The Law, the Universe, and Everything Sun, 22 Nov 2009 04:22:46 -0700 http://wordpress.org/?v=2.8.3 hourly 1 By: Charlie http://www.concurringopinions.com/archives/2006/08/pushing_or_perh.html/comment-page-1#comment-57422 Charlie Wed, 16 Aug 2006 11:50:28 +0000 http://www.solove.org/archives/2006/08/pushing-or-perhaps-ripping-the-arbitration-envelope.html#comment-57422 I think I've been mostly concerned with what "manifest disregard" means -- an especially difficult problem since arbitrators are generally not required to write opinions/explanations much less enter findings of facts and conclusions of law that might reveal they disregarded the law rather than construed it as applied. But your question raises the deeper issue of what "law" is -- at least common law. Before we get there, we might want to consider preclusion doctines, including law of the case (assuming, which I don't know, this works as usual in the certification context), and collateral estoppel (if the legal proceedings are somehow collateral to the arbitration and binding). But if we finally get to the ultimate question of whether Delta is "law" for this case, and presumably others in NJ, I guess I don't see why it shouldn't be. It answered a question that arose in litigation, it purported to dictate a result (admittedly in "you can't do that" context rather than a "you must do this"), and I would assume (correct me if I'm wrong) that the Third Circuit is bound to follow this (by Erie) so long as the question turns on NJ law (rather than the FAA). I think I’ve been mostly concerned with what “manifest disregard” means — an especially difficult problem since arbitrators are generally not required to write opinions/explanations much less enter findings of facts and conclusions of law that might reveal they disregarded the law rather than construed it as applied.

But your question raises the deeper issue of what “law” is — at least common law. Before we get there, we might want to consider preclusion doctines, including law of the case (assuming, which I don’t know, this works as usual in the certification context), and collateral estoppel (if the legal proceedings are somehow collateral to the arbitration and binding).

But if we finally get to the ultimate question of whether Delta is “law” for this case, and presumably others in NJ, I guess I don’t see why it shouldn’t be. It answered a question that arose in litigation, it purported to dictate a result (admittedly in “you can’t do that” context rather than a “you must do this”), and I would assume (correct me if I’m wrong) that the Third Circuit is bound to follow this (by Erie) so long as the question turns on NJ law (rather than the FAA).

]]> By: Dave Hoffman http://www.concurringopinions.com/archives/2006/08/pushing_or_perh.html/comment-page-1#comment-57421 Dave Hoffman Wed, 16 Aug 2006 02:18:30 +0000 http://www.solove.org/archives/2006/08/pushing-or-perhaps-ripping-the-arbitration-envelope.html#comment-57421 Really interesting case, thanks for bring it to wider attention. It strikes me that this is a nice example of the potentially troublesome relationship between certification and ripeness which you see sometimes discussed in fed. courts. scholarship. It is not clear to me (having not read the opinion, I admit) how manifest disregard as a standard relates to what I'd see as something very much like a bit of helpful, but advisory, dicta. Really interesting case, thanks for bring it to wider attention. It strikes me that this is a nice example of the potentially troublesome relationship between certification and ripeness which you see sometimes discussed in fed. courts. scholarship. It is not clear to me (having not read the opinion, I admit) how manifest disregard as a standard relates to what I’d see as something very much like a bit of helpful, but advisory, dicta.

]]>