Scalia, J., concurring in judgment
tion award itself violates positive law." Ante, at 63. No case is cited to support that proposition, and none could be. There is not a single decision, since this Court washed its hands of general common-lawmaking authority, see Erie R. Co. v. Tompkins, 304 U. S. 64 (1938), in which we have refused to enforce on "public policy" grounds an agreement that did not violate, or provide for the violation of, some positive law. See, e. g., Hurd v. Hodge, 334 U. S. 24 (1948) (refusing to enforce under the public policy doctrine a restrictive covenant that violated Rev. Stat. § 1978, 42 U. S. C. § 1982).
After its dictum opening the door to flaccid public policy arguments of the sort presented by petitioner here, the Court immediately posts a giant "Do Not Enter" sign. "[T]he public policy exception," it says, "is narrow and must satisfy the principles set forth in W. R. Grace," ante, at 63, which require that the applicable public policy be "explicit," "well defined," "dominant," and "ascertained 'by reference to the laws and legal precedents and not from general considerations of supposed public interests,' " W. R. Grace & Co. v. Rubber Workers, 461 U. S. 757, 766 (1983) (quoting Muschany v. United States, 324 U. S. 49, 66 (1945)). It is hard to imagine how an arbitration award could violate a public policy, identified in this fashion, without actually conflicting with positive law. If such an award could ever exist, it would surely be so rare that the benefit of preserving the courts' ability to deal with it is far outweighed by the confusion and uncertainty, and hence the obstructive litigation, that the Court's Delphic "agree[ment] in principle" will engender.
The problem with judicial intuition of a public policy that goes beyond the actual prohibitions of the law is that there is no way of knowing whether the apparent gaps in the law are intentional or inadvertent. The final form of a statute or regulation, especially in the regulated fields where the public policy doctrine is likely to rear its head, is often thePage: Index Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 Next
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