Several news outlets this morning are reporting that President Biden will be nominating Judge Ketanji Brown Jackson to serve on the Supreme Court.
I’ve reviewed Judge Jackson’s opinions involving the Federal Arbitration Act (FAA), and I am impressed. She thoroughly wrestles and engages with the law in a refreshing way. Her opinions are very methodical. She will start with basic principles and background, and then, step-by-step, get into the most detailed weeds in a meticulous and comprehensive manner to produce a thoughtful, carefully-reasoned opinion.
In Osvatics v. Lyft, Inc., 535 F. Supp. 3d 1 (D.D.C. 2021), she found that the transportation worker exemption in the FAA did not apply to a Lyft worker. There are many diverging opinions in the law regarding the precise contours of this exemption (the Supreme Court is currently hearing a case called Southwest Airlines v. Saxon, which will address the scope of the exemption). In the Lyft case, Judge Jackson was careful to acknowledge, distinguish, and thoroughly analyze different views regarding the exemption. She wrestled with and discussed every angle before reaching her conclusion.
In Cho v. Mallon & McCool, LLC, 263 F. Supp. 3d 226 (D.D.C. 2017), Judge Jackson refused to compel arbitration on the grounds that the defendant had waived its right to do so. Judge Jackson cited a minority view regarding waiver and the FAA, and under this view, one must invoke the right to arbitrate at the first available opportunity. Most other circuits are more flexible and hesitant to find a waiver of the right to arbitrate. However, the minority view is controlling in her circuit. In her opinions, I found that she was careful to follow governing precedent.
In her FAA opinions, she was careful to acknowledge the different arguments of the parties. In an interesting footnote in one of her decisions, it seems that a party once suggested that Judge Jackson was confused about the party’s arguments. Judge Jackson carefully acknowledged in the footnote that she heard the party’s arguments loud and clear, but she respectfully disagreed on the merits of those arguments. See Huntington Ingalls Inc. v. Ministry of Def. of Bolivarian Republic of Venezuela, 2019 WL 2476629, at *6 n.3 (D.D.C. June 13, 2019)).
In another thoughtful footnote from Judge Jackson, which was music to my ears, she acknowledged that FAA jurisprudence had crept into the field of labor arbitration. I find some judges carelessly cite the FAA in connection with labor arbitration cases. However, Judge Jackson recognized that accuracy counsels against treating labor arbitration and commercial arbitration interchangeably. See Dist. No. 1, Pac. Coast Dist., Marine Engineers’ Beneficial Ass’n, AFL-CIO v. Liberty Mar. Corp., 70 F. Supp. 3d 327, 346 n.10 (D.D.C. 2014).
I’ve read thousands of FAA opinions over the years, and if I had to place her opinions on a spectrum regarding detailed, careful, thorough analysis, I would place her FAA opinions towards the far end of the spectrum. Based on her FAA decisions, if I were an attorney or party with a case before Judge Jackson, I would feel that my voice was heard, even if she ultimately disagrees with my views.