In response to Sarah Cole’s initial posting on the Hall Street decision, ohwilleke wrote:
The clearest purpose I can see for the ruling is an institutional perogative of the judicial branch which does not want to be compelled to provide a la carte justice on demand.
What’s interesting about the hypothesis ohwilleke offers is that courts ARE compelled to provide justice on demand. (Or I suppose more technically, on pleading.) That leaves only the “a la carte” aspect as potentially problematic. And I guess I’m not sure I fully understand the underlying nature of the objection to the idea that courts might be made available in customized ways. For more heresy on the subject, see Michael Moffitt, Customized Litigation: The Case for Making Civil Procedure Negotiable, 75 George Washington Law Review 461 (2007). Michael Moffitt
The “a la carte” part is indeed the issue. The concerns are that deviations from the normal federal rules would disrupt the orderly workings of the court and would upset the balance present within them.
Some judges I’ve tried cases before in both federal and state court, although, a minority, have even taken the position that no partial settlements of a case will be accepted. They insist upon either a settlement in full, or a full evidentiary trial on all issues, a position apparently designed to encourage full settlements and to give the judge wide latitude to resolve the case if it does go to trial.
I don’t agree that this is good policy, although I can imagine a la carte justice situations that are worrisome. For example, what if the parties to a rabbinical divorce arbitration in a childless couple agreed to allow federal court review to see if there were errors in applying the rabbinical law to the facts? Or what if a judge were told to review an arbitration based upon the full substantive law but was bound by even the most implausible facts found by the arbitrator under the agreement of the parties.
Choice of law clauses, of course, permit this to some degree, but generally are constrained in that they refer to the laws of some ordinary political jurisdiction.