Texas Appellate Lawyer & Attorney : D. Todd Smith Law Firm : Appeals, Sanctions, Summary Judgment : Austin, Texas

Believe it or not, I'm a sucker for lawyer TV shows, in part because they're so unrealistic they make me laugh.  I'd pretty much given up on ABC's Boston Legal this season; for various reasons, I thought the show had jumped the shark.  But I couldn't help noticing Tuesday's episode entitled "The Court Supreme," in which James Spader's character, Alan Shore, argues an appeal to the U.S. Supreme Court on behalf of a mentally challenged man facing the death penalty for raping a child.

If you have ever watched the show and have seen one of Alan's politically tinged, closing-argument rants, you can imagine what happened.  (Pssssst.  Hey Alan.  One of the first rules of appellate practice is to save the impassioned jury argument for a jury.  To that, I would add that it's generally a bad idea to insult the Justices from the lectern.)  A 10-minute video clip is available on YouTube.  It's worth watching not only as a reminder of what not to do at an appellate argument, but also for ABC's amazing casting of look-alikes for the High Nine.

• Print
• Comments (1)
• Trackbacks

The blogosphere has been a little slow catching on to yesterday's SCOTUS decision in Hall Street Associates, L.L.C. v. Mattel, Inc. (06-989).  Aside from my own post, here are the blog entries I have found discussing the case:

• Adjunct Law Prof Blog, which opines that parties to a collective bargaining agreement can still alter the standard of judicial review because they are governed by 29 U.S.C. § 1985 (Section 301) and common law, rather than the FAA.
  
• Blawgletter, which surmises that the decision might re-focus attention on the arbitration process itself and mentions that parties who remain concerned about an arbitrator "going off the reservation" might consider adopting an arbitration appeal procedure.
  
• Federal Civil Practice Bulletin, which summarizes the majority opinion.
  
• Northwest Business Litigation Blog, which does the same.
  
• SCOTUSwiki, which has a lot of background information on the case.
  
• Supreme Court of Texas Blog, which focuses on how the case may affect Bison Building Materials, Ltd. v. Aldridge (No. 06-1084), a case currently pending in the Texas Supreme Court—and rightly points out that Hall Street may be flying under the radar because it was issued the same day as "the much sexier Medellin v. Texas decision."
  
• WorkPlace Prof Blog, which found the outcome surprising and somewhat troubling because it might restrict contracting parties' ability to bargain for procedural protections not specifically addressed in the FAA.

I will supplement this list as new discussions come to my attention.

3/27/08 update with additional links:

• ADR Prof Blog
• ADR Prof Blog (follow-up)
• Disputing
• LawMemo Arbitration Blog
• National Arbitration Forum Blog

• Print
• Comments
• Trackbacks (1)

In Hall Street Associates, L.L.C. v. Mattel, Inc. (06-989) (previously discussed here), the U.S. Supreme Court has held that a contract purporting to allow judicial review of an arbitration award for evidentiary and legal errors cannot be enforced under the Federal Arbitration Act.

Although this decision shutters the notion that parties can contract for expanded judicial review under the FAA, it does not preclude enforcement of such agreements under state law.  The key is whether the underlying agreement "involves commerce"—something the Hall Street parties did not litigate—and thereby triggers the federal statute.  Thus, in an effort to preserve existing agreements for enhanced review, parties will contend that state arbitration law applies.  Going forward, contracting parties will more likely turn to "arbitration appellate panels," building a level of review into the arbitration process before reaching any potential judicial remedies.

In vehemently defending the narrow statutory bases for vacating arbitration awards, Hall Street muddies the water with respect to whether judicially created vacatur grounds such as "manifest disregard of the law" and "violation of public policy" remain valid.  Those grounds were not squarely at issue—manifest disregard is mentioned in the majority opinion, but public policy is not—yet the Court describes the FAA bases for vacatur and modification as "exclusive."  Federal and state courts applying the FAA will face these issues in the near future.

• Print
• Comments
• Trackbacks (2)

The U.S. Supreme Court heard argument in a particularly interesting and (I think) important case today.  In Hall Street Associates, L.L.C. v. Mattel, Inc. (06-989), the Court will decide whether contracting parties may agree to expand the grounds for vacating arbitration awards beyond those recognized under the Federal Arbitration Act.  The Fifth Circuit and others have said yes—see Gateway Techs., Inc. v. MCI Telecomms. Corp., 64 F.3d 993 (5th Cir. 1995)—but the Ninth Circuit disagreed.  The merits briefs, amicus briefs, and a transcript of the argument are available here.

• Print
• Comments
• Trackbacks (1)

Per How Appealing:

The U.S. Supreme Court has issued a "Memorandum to Counsel" about the forthcoming revisions to that Court's rules:  You can access the five-page memorandum at this link.  Among other things. the memorandum suggests that the Court will begin making electronically-filed briefs available for access over the Court's own web site.

• Print
• Comments
• Trackbacks

Reaction to last week's U.S. Supreme Court decision in Philip Morris USA v. Williams (referenced here) has been interesting, to say the least.  Early on, the feedback seemed universally negative.  For an example, check out this editorial from The New York Times.

More recently, at least two commentators have managed to find a silver lining in the Court's ruling.  Over at Blawgletter, Barry Barnett observed that the decision, by turning on jury instructions rather than imposing a bright line rule on the ratio between actual and punitive damages, effectively "affirmed the jury's primacy in determining appropriate punishment," potentially signaling a "healthy reluctance on the Court to undo the work of juries."

Taking a different slant, Law.com's Howard Bashman went so far as to proclaim the ruling "good news for plaintiffs who don't win the race to be first to obtain punitive damages against a defendant whose conduct has harmed many" because "the defendant will no longer be able to persuasively argue that earlier punitive damages awards aimed at punishing the same conduct at issue in the current plaintiff's lawsuit extracted a punishment sufficient to mandate the dismissal of that particular plaintiff's punitive damages claim."

These days, the silver lining is getting harder and harder to find.  I am grateful that someone is still looking.

• Print
• Comments (1)
• Trackbacks

In Philip Morris USA v. Williams, the United States Supreme Court has reversed a $79.5 million punitive damage judgment on the ground that it unconstitionally punished Big Tobacco for harming nonparties to the suit. SCOTUSBlog has summarized the 5-4 ruling here.

• Print
• Comments
• Trackbacks