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Friday, December 13, 2013

An Exciting Discovered "Opinion" on the Eventual Triumph of Arbitration

Adam Steinman posts at the Civil Procedure and Federal Courts Blog about this paper by Charles Sullivan and Timothy Glynn, The FAA Triumphal: A Modest Opinion.

The paper begins on a dramatic note:

The opinion reproduced below was delivered to us anonymously, with a cover note stating that it had been found on a photocopy machine in the Supreme Court of the United States.  Efforts to identify the source of the note have been unsuccessful; further, we have been unable to confirm that a case denominated Pasquinade v. Quillet Enterprises, Inc., was ever filed in that Court or in any other federal court.

The rest of the paper consists of the Pasquinade opinion, the beginning of which indicates that exciting things are to follow:

We hold both that the failure to refer to arbitration in haec verba does not bar a finding of an agreement to arbitrate under the Federal Arbitration Act, and that arbitration is so much the preferred method of dispute resolution under the FAA that, for all contracts within its ambit, arbitration should be presumptively the sole method of resolving disputes that arise under that contract. Only when the parties have expressly and unmistakably negated arbitration, and insisted on judicial resolution, should a court refuse to order arbitration.

I recommend that you read the entire opinion.  For example, take this passage from the beginning of the opinion:

The dissent’s position that this matter is not an “important question of federal law” is truly jawdropping.  After all, with only mild hyperbole, our decision today will oust both federal and state courts of jurisdiction to decide almost all contract claims. What could be more important?

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