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It’s not often one sees a judge stop just short of dissenting from her own opinion, and when it happens it’s worth noting. Just such a jurisprudential anomaly occurred July 17 in Portland General Electric v. U.S. Bank Trust, 00 C.D.O.S. 5883. Ninth U.S. Circuit Court of Appeals Judge M. Margaret McKeown ruled that federal courts must look to state laws in cases falling under the Federal Arbitration Act when an appraisal is disputed — but she apparently sensed something rotten in the state of Denmark. So McKeown dutifully wrote the opinion, citing 9th Circuit precedent in Wasyl Inc. v. First Boston Corp., 813 F.2d 1579, in siding with U.S. Bank Trust as part of its challenge to a mutually agreed upon contract with Portland GE, which apparently had distasteful results. Then she and Judge A. Wallace Tashima wrote concurrences to the opinion, which, in effect, are dissents. Both Tashima and McKeown questioned whether Wasyl was correctly decided. As Tashima explained, “It seems counterintuitive to look to state law to define a term in a federal statute on a subject as to which Congress has declared the need for national uniformity. Yet, that is exactly what Wasyl requires.” McKeown wrote a special joinder in Tashima’s concurrence, saying, “although I am the author of the opinion, I join in Judge Tashima’s concurrence because I question the vitality of [Wasyl].” Wasyl is a 1987 circuit opinion authored by J. Blaine Anderson and joined by two current 9th Circuit senior judges, Dorothy Nelson and William Canby Jr. The case was argued by a lawyer named Bela Lugosi. There’s no doubt this is one case McKeown would like to drive a stake through. Ironically, Anderson, who died in 1988, was famous for saying, “You just have to swallow hard and follow the law.” And he left behind a lesson for today’s judges.

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