Painewebber Incorporated v. Michael J. Bybyk and Joyce O. Bybyk

The eight-line decision of the court below is not simply “pithy,” as my colleagues generously describe it. It fails completely to discuss the parties’ expressed intent and the effect of such expressed intent on arbitrability. As a result, this Court has been forced to make this determination, a task that should have been performed by the district court. Unfortunately, our de novo undertaking has not left, us in unanimous accord.

In Volt Info. Sciences v. Board of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 479, 109 S.Ct. 1248, 1256, 103 L.Ed.2d 488 (1989), the Court instructed us…