Category: Supreme Court


Supreme Court Arbitration Rhetoric v. Reality and AT&T

Lawyers keep telling clients that arbitration is a matter of contract, not coercion. That follows Supreme Court rhetoric that’s belied by Supreme Court practice.  The Court’s pending case in AT&T Mobility v. Concepcion gives the Court a final chance to resolve the gap between its talk and action concerning arbitration. 

 I doubt, however, the Court will seize the opportunity.  Instead, the Court likely will continue to tell us that its arbitration jurisprudence is merely applied contract law, while its applications will continue to coerce people into arbitration because the Court has established a national policy favoring arbitration. 

That is the lamentable assessment provided in my new article on the subjectRhetoric versus Reality in Arbitration Jurisprudence: How the Supreme Court Flaunts and Flunks Contracts (and Why Contracts Teachers Need Not Teach the Cases).

As with practicing lawyers, legal scholars have generally ignored this rhetoric-reality gap too, many routinely repeating that arbitration is all about contract (a notable  exception is David Horton).  As a teacher of Contracts for 20 years, I began to hear this rhetoric last summer, beginning with my receipt of a reprint of an Illinois Law Review article by noted arbitration scholar Thomas Stipanowich

In a comprehensive review of the state of arbitration law and practice, the piece criticized editors of Contracts casebooks for paying too little attention to arbitration and especially to how the attention given was often extremely negative. With modest exceptions, including in Ian Ayres’ casebook, Contract law books and courses have not generally treated arbitration much and the treatment often is in the context of illustrating doctrines like unconscionability or lopsided terms not comporting with reasonable expectations of a community. 

I began following pending Supreme Court cases on the subject and scrutinizing those handed down in preceding terms. I found the talk about contracts and contract law intriguing because it made it sound as if arbitration was at the center of contract law and that contract law was at the center of arbitration law. That made it seem irresponsible for me, Contracts casebook editors, and other teachers, to leave arbitration at the margins of the Contracts course or outside it altogether.

Alas, the truth is that contract and contract law have so little to do with what happens in arbitration jurisprudence, particularly compared to Court rhetoric, that it would confuse or mislead students taking Contracts to provide it as an illustration. To that extent, arbitration warrants the glancing treatment in the Contracts course it gets, followed by an optional upper-level course.  

Among the many costs of the Court’s rhetoric-reality gap are those manifest in the AT&T case, on which the Court is now struggling to write an opinion.

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A Supreme Court Filibuster

With the recent walkout in the Wisconsin Senate still fresh in our minds, I’m wondering about the following problem.  A federal statute (28 U.S.C. s. 1) provides that six Justices constitute a quorum.  Suppose that in a given case four Justices refuse to participate any further because they are outraged at the draft opinion circulated by the majority.  Can they effectively filibuster that opinion until it’s withdrawn?

I think one question is when does a quorum attach.  Is it when the cert petition is voted on?  When oral argument happens?  When a case is discussed in conference? When the opinion is handed down?  Do you have to boycott all cases and petitions that are pending, or can you do it selectively?  I don’t know.


Random Trivia

I didn’t realize until the other day that only four Chief Justices of the United States were appointed by Democrats:

1.  Roger Taney (Andrew Jackson)

2.  Melville Fuller (Grover Cleveland)

3.  Harlan Fiske Stone (FDR)

4.  Fred Vinson (Harry Truman)

That’s it.  All of the others were nominated by Republicans or Federalists.  And that also means that the last Democratic Chief Justice was picked in 1946–talk about a long drought.


BTW, I want to congratulate Duke on returning to the Championship game.  Doing that two years in a row is what you’d expect from a powerhouse program.

Oh, that’s right . . .  Butler is the one that got back to the Final.  Go Dawgs!


Sheen-Lorre Arbitration Skirmish Tests SCOTUS Rhetoric

Skirmishing this morning in Hollywood by actor Charlie Sheen against producer Chuck Lorre and the Warner Brothers studio will determine whether their larger legal battle airs in a public courtroom, as Sheen wants, or behind closed doors in private arbitration, as his adversaries prefer.

The skirmish exposes a tension in the applicable law. The Supreme Court repeatedly proclaims that the route to resolve disputes by arbitration is solely a matter of contract, which would help Sheen, because he has no contract with Lorre.

Despite rhetoric, the Court routinely applies what it sees as a national policy so strongly favoring arbitration that the merest flicker of willingness to arbitrate one claim against one person is taken to mean a commitment to arbitrate any dispute with anyone, even those with whom you have made no contract.

The upshot: though Sheen has no contract with Lorre, the fact that he agreed with Warner to resolve disputes between them using arbitration would be seen to bind him likewise to arbitrate disputes with Lorre. If the dispute reached the Supreme Court, it would even defend that holding by stressing freedom of contract—that Sheen is not being coerced to arbitrate with Lorre since; after all, he contracted to arbitrate with Warner.

As I’ve indicated before and earlier, I have written an article documenting and criticizing this gap between what the Court says and does in arbitration jurisprudence: proclaiming freedom of contract but forging coercive national policy.  I presented the paper at the Federalist Society meeting in San Francisco in January; for a recent faculty workshop at Florida State University ; and at an ILEP Conference.   It is posted on SSRN. Read More


Felix Frankfurter

In teaching con law this semester, I was struck by something that crosses my mind every so often. Felix Frankfurter was obviously an influential teacher, scholar, political advisor, and judge.  He was also a fearless advocate for liberal causes in situations such as the Sacco and Vanzetti case.

At the risk of incurring the wrath of Harvard, though, he was a terrible writer.  I wince every time I have to read one of his opinions.  They’re often meandering, filled with irrelevant commentary, and hard to understand.  His academic prose, unfortunately, isn’t any better.  (His colleague Robert H. Jackson blows him away in this respect.)

Indeed, I’d be hard pressed to name a single Frankfurter opinion that is influential today.


Justice Arthur Goldberg

In some recent research, I’ve been struck by the high quality of Justice Arthur Goldberg’s opinions during his three years on the Court (from 1962-1965).  In Heart of Atlanta Motel, Inc. v. United States and Griswold v. Connecticut, for example, he wrote separate opinions that were more insightful than what the Court produced. His memo in Harper v. Board of Elections was much better than Justice Douglas’ opinion.  And he was the first Justice to raise constitutional questions about the death penalty.  (Justice Breyer was Goldberg’s clerk; so was Alan Dershowitz).

Unfortunately, Justice Goldberg allowed himself to be talked into resigning to become our Ambassador to the UN.  Lyndon Johnson, who was famous for his ability to persuade, wanted to put Abe Fortas on the Court and convinced Goldberg that the path to the White House rested with success at the UN.  (Writing that line just reinforces how absurd LBJ’s pitch was.) He also made some sort of empty promise to put Goldberg back on the Court if that didn’t work out.

Justice Goldberg resigned from the Court when he was just 57.  He lived until 1990, which suggests that under normal circumstances he would have served on the Court for more than two decades.  It’s fair to say that he’s probably the last Justice who will leave the bench to take another government post.


A Few Preliminary Thoughts on Snyder v. Phelps

This morning the Supreme Court handed down its decision in Snyder v. Phelps, No. 09-751, holding that a military funeral protest by the Fred Phelps’ Westboro Baptist Church was protected by the First Amendment, and did not give rise to civil liability under the state law torts of intentional infliction of emotional distress (IIED), invasion of privacy, or civil conspiracy.  The case has generated a lot of media attention, in part because it offered a chance to see whether the Roberts Court would continue its trend of retaining or expanding strong First Amendment protections.  (In United States v. Stevens 130 S.Ct. 1577 (2010), which I blogged about here last year, the Court claimed fidelity to the existing structures of First Amendment law, even though it seems to have expanded corporate speech protections in Citizens United 130 S.Ct. 876 (2010), and cut back on incitement doctrine in Holder v. Humanitarian Law Project, 130 S.Ct. 2705 (2010)).  Snyder v. Phelps is also notable because the defendant, Fred Phelps, is possibly the most unappealing First Amendment claimant that has made it to the Supreme Court.  In an opinion by Chief Justice Roberts, the Court upheld the funeral protest, essentially holding that speech on matters of public concern made peaceably in a public space receives protection even if it causes significant psychological and emotional harm.  As the Chief Justice concluded:

Speech is powerful.  It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain.  On the facts before us, we cannot react to that pain by punishing the speaker.   As a Nation we have chosen a different course—to protect even hurtful speech on public issues to  ensure that we do not stifle public debate.  That choice requires that we shield Westboro from tort liability for its picketing in this case.

There is a lot to say about this important decision, but a few preliminary observations struck me as especially interesting.  First, the holding in the case seems to be correct, at least as a matter of fidelity to existing First Amendment precedent.  In Falwell v. Flynt, 485 U.S. 46 (1988), the Court held that IIED suits by public figures had to satisfy the protective actual malice standard of New York Times v. Sullivan, 376 U.S. 254 (1964), continuing the trend of First Amendment cases protecting speech on matters of public concern even if they caused emotional injury.  Some observers thought that Snyder was a chance for the Court to halt the trend, since Snyder, the plaintiff in this case, was merely the father of an ordinary soldier killed while serving in Iraq and not a public figure.  What’s interesting about today’s opinion is that the Court sidestepped this question entirely, holding that the nature of the speech was a matter of public concern and thus protected.  The Court held that the Church’s rather distasteful message – that God hates America and is punishing it for its tolerance of homosexuality, particularly in the armed forces – was principally a commentary on public affairs rather than a private act of harassment against the Snyder family.  Again, this is consistent with the broad theme of modern First Amendment law that speech on matters of public concern (especially politics) is entitled to very strong protection, and cannot be regulated or made the subject of civil liability even when (like this speech) it is both offensive to many and causes significant harm.

The second aspect of this case that’s notable is what it says about tort liability and free speech.  Dan Solove and I have argued (here) that torts are most threatening to the First Amendment when they allow the state to control the content of public debate.  Snyder is certainly consistent with that theory, and it seems to all but rule out liability for IIED when the speech at issue is about a matter of public concern.  The Court also ruled that the invasion of privacy (intrusion upon seclusion) claim for funeral disruption violated the First Amendment because the speech was protected, and the captive audience doctrine did not save Snyder’s claim.  The invasion of privacy claim is odd, because it seems that the district court in this case mis-applied Maryland law.  Although the intrusion upon seclusion tort would be violated (and probably could to impose liability constitutionally) if a protestor disrupted a funeral by entering a church or menacing a gravesite, those facts weren’t present here.  (In fact, the concurrence by Judge Shedd at the Fourth Circuit level made exactly this point, but the point wasn’t preserved on appeal).  So in reality, the invasion of privacy claim boils down to something like “you hurt my feelings when you picketed the funeral from a public place”; in other words, a classic IIED claim.

There are thus lots of questions about the relationship between tort liability and free speech that the Court refused to decide and remain open.  For instance, the Court tells us that speech on “matters of public concern” is protected, which it defines as “a subject of general interest and of value and concern to the public.”  But it doesn’t define private speech, so we don’t really know how broad the “public speech” category is.  Presumably, because the Court uses a kind of “enquiring minds want to know” standard, it’s a rather broad category, but it’s hard to be sure from this opinion.  The Court does hint in a couple of places that personally directed harassment, speech to a small number of people, and the publication of someone else’s sex tape would be “private speech” and more readily amenable to regulation based on their content.  In addition, the Court refused to rule on a second IIED claim, one arising from a post on the Church’s website that described the funeral protest in detail.  The court noted only that “an Internet posting may raise distinct issues in this context,” and declined to rule on the question.  This allows the possibility that the Court could create a separate category of cyber-harassment, though given the overall tenor of the opinion, I think this possibility is unlikely to occur in practice.  It is interesting to see the Court treading warily in the Internet speech context, however.

The third notable aspect of this case is Justice Alito’s dissent.  Last year in Stevens, he dissented from the Court’s protection of animal cruelty videos, apparently on the ground that certain images are so horrible that society can regulate them.  Today, he also seemed outraged by the emotionally harmful nature of the Church’s protest, and would have allowed the state to regulate the protest by holding that the tort actions weren’t protected by the First Amendment.  Alito seems willing to approve a per se rule that funerals call for special sensitivity and special protection against “emotional assaults.”  But reading this opinion together with his Stevens dissent, it appears that Justice Alito is the most willing member of the current Court to allow regulation of speech based upon its morally objectionable nature or its emotionally harmful content.  It will be interesting to see how he rules the next time the Court hears a hate speech case, if only to test his fidelity to this principle.  If his vote in that future case is consistent with his vote today, Justice Alito may be the best friend of anyone who seeks a broader protection against hate speech and other words that wound.

Finally, although the case is something of a victory for orthodox free speech theory, there is one note of concern for free speech advocates, which is the opinion’s toleration of “free speech zone” theory.  The opinion notes with approval that the funeral protest took place from a free speech zone from behind a protective fence, and notes at the end that even though Phelps’ speech was protected, it would certainly be amenable to possibly aggressive time, place, and manner restriction.  If, as Tim Zick suggests in his excellent recent book Speech Out of Doors, spatial tactics have become the new frontier of free speech protection, Snyder v. Phelps possibly moves us even further in that direction, for all of its protection of the funeral protest at issue.  So the real message to states from Snyder v. Phelps might be not that lots of speech is protected, but as a blueprint for ways to regulate lots of speech in the future.


UCLA Law Review Vol. 58, Issue 3 (February 2011)

Volume 58, Issue 3 (February 2011)


Good Faith and Law Evasion Samuel W. Buell 611
Making Sovereigns Indispensable: Pimentel and the Evolution of Rule 19 Katherine Florey 667
The Need for a Research Culture in the Forensic Sciences Jennifer L. Mnookin et al. 725
Commentary on The Need for a Research Culture in the Forensic Sciences Joseph P. Bono 781
Commentary on The Need for a Research Culture in the Forensic Sciences Judge Nancy Gertner 789
Commentary on The Need for a Research Culture in the Forensic Sciences Pierre Margot 795


What’s Your Position? Amending the Bankruptcy Disclosure Rules to Keep Pace With Financial Innovation Samuel M. Kidder 803
Defendant Class Actions and Patent Infringement Litigation Matthew K. K. Sumida 843


Pop Quiz on Contracts and Arbitration

This is a pop quiz, suitable for any lawyer plus students and teachers of contracts and arbitration–and anyone interested in the immense power and discretion of the United States Supreme Court. The facts are:

Buyer and Seller sign a contract for the sale of goods. It says “any disputes arising under the contract shall be submitted to arbitration.” To finance its business, Seller transfers the contract to Bank, saying Seller “assigns the contract” to Bank. Buyer pays Bank the purchase price and later finds the goods defective. It files a claim in arbitration against Bank, which Bank resists.

Who wins the dispute over arbitration, Bank or Buyer, under: (a) New York contract law, (b) general contract law applicable in many states, as set forth in the Restatement (Second) of Contracts, and (c) federal arbitration law?

(a) Under New York contract law, Bank wins.  Bank is not bound to the arbitration clause because, under century-old New York contract law applicable to assignments, assignees assume only such duties as they expressly accept.  The language of assignment, “assigns the contract,” does not manifest that Bank intended to accept any duties, including any duty to arbitrate.

(b) Under the Restatement (Second) of Contracts, Buyer wins.  It has long stated the presumption opposite that of New York: ambiguous contractual expressions of assignment, such as “assigns the contract,” are deemed both an assignment of rights and an assumption of duties. (A caveat applies to land sale contracts, which nods to the New York law presumption requiring express assumption of duties.)

(c) Under federal arbitration law, Read More


The Supreme Court Justices at the Bar of Politics

I had the pleasure of reading Noah Feldman’s Scorpions this past weekend. It’s an entertaining book, and does a great job relating the judicial and political machinations of Justices Black, Douglas, Frankfurter, and Jackson. The judicial machinations are familiar, but I suspect that for many readers the  extent of the Justices’ direct and ongoing involvement in politics–and not only through their rulings–will come as a bit of a surprise, especially given the widespread hand-wringing about how today’s Court is “political.” However justified that hand-wringing may be, I doubt I’m alone in thinking it unimaginable that any of the current or recently retired Justices would use a seat on the Court as a stepping stone to some other political position. That said, I’m not entirely sure why.

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