Professor Alan Scott Rau Responds to Hall Street v. Mattel

Professor Alan Scott Rau sent the following comments to Karl in response to our thoughts about his recent article on Hall Street v. Mattel. They are helpful, and they raise a question for our readers, that is, for lawyers in the trenches in Texas. The [unedited] comments follow:

Two points, one small, one rather larger: I’m not entirely sure that parties do still have the option of using arbitration to generate “an agreed statement of facts” so that they can bring an action on such an agreed statement: After all, an “award,” to have legal effect, has to pretend to be dispositive, and after Hall Street, it seems that any “award” would be entitled to full confirmation—-notwithstanding the wishes of the parties and notwithstanding the presence of egregious legal error. (I was suggesting that since the parties could always, on their own, agree on a statement of facts, and then submit it to the court, an arbitration award, entered into pursuant to an agreement of the parties, should be treated the same way—that’s the point made by Justice Breyer in oral argument, but he was, alas, in the dissent, and I fear that ship has sailed.)

Here’s something that’s more important: What does appear to be still open to the parties is to hire a retired judge as a private arbitrator, tailor the procedure as they wish, invoke the state’s “Rent-a-Judge” statute, and then have full review on errors of law, just like from a trial court, in the court of appeals. I’d be very curious to hear from your readers how many people have ever taken advantage of this statute—and, as I suspect the answer is “few,” to learn why more people don’t feel comfortable in using it.