Thursday, February 23, 2006
Fun with arbitration
I know everyone's much more interested in the hallucinogenic tea case, but yesterday's case on arbitration has some funny aspects to it, and shows that Roberts has a bit of a wicked sense of humour.
The case is Buckeye Check Cashing v Cardegna, but to tell the story, we must first go back to 1995's watershed Allied-Bruce Terminix v Dobson. That case affirmed Southland v Keating, a hoary old precedent (1984) which ruled that the FAA applies to state courts. Justices Thomas and Scalia argued in Allied-Bruce that Southland was incorrect in this ruling. Thomas, showing remarkable restraint, did not quote either The Federalist or Is That a Parrot on Your Shoulder or Are You Just Happy To See Me?:The Best of Long Dong Silver, but did quote Erie, other federal cases from 1924, 1914 and 1847, a 1931 law review article, a 1935 treatise, a 1921 district court case, an 1840 Alabama case and a case intriguingly named Aktieselskabet Korn-Og Foderstof Kompagniet v. Rederiaktiebolaget Atlanten (better known, owing to a typographical error, as The Korn-Dog).
Scalia said: "I shall not in the future dissent from judgments that rest on Southland. I will, however, stand ready to join four other Justices in overruling it." Thomas said nothing of the sort.
Fast-forward to this week's decision. Thomas is still arguing (into a void - no-one has joined him) that the FAA doesn't apply to state courts. I still find it a little unbelievable how one can have a Supreme Court justice who doesn't believe in stare decisis at all - the man clearly has no idea what it means to be a judge.
Everyone else is for reversing the lower case. So Roberts, of course, gets to pick the writer. Who does he give it to? Yup, little Nino, who now has to write an opinion using Southland. I don't know about you, but I think that's a sly little bit of judicial humour.
(Also, I don't know if anyone else has noticed, but except for 2 Thomas dissents - his other one, weirdly, said in effect that you can sue the Post Office if you slip and fall on an empty mailbag but not a full one (I really think he's either insane or an idiot) - and 2 Stevens dissents, 1 joined by Kennedy, the last 9 cases have all been unanimous. Roberts must be a uniter, not a divider (and Alito hasn't taken part in one of them).)
The case is Buckeye Check Cashing v Cardegna, but to tell the story, we must first go back to 1995's watershed Allied-Bruce Terminix v Dobson. That case affirmed Southland v Keating, a hoary old precedent (1984) which ruled that the FAA applies to state courts. Justices Thomas and Scalia argued in Allied-Bruce that Southland was incorrect in this ruling. Thomas, showing remarkable restraint, did not quote either The Federalist or Is That a Parrot on Your Shoulder or Are You Just Happy To See Me?:The Best of Long Dong Silver, but did quote Erie, other federal cases from 1924, 1914 and 1847, a 1931 law review article, a 1935 treatise, a 1921 district court case, an 1840 Alabama case and a case intriguingly named Aktieselskabet Korn-Og Foderstof Kompagniet v. Rederiaktiebolaget Atlanten (better known, owing to a typographical error, as The Korn-Dog).
Scalia said: "I shall not in the future dissent from judgments that rest on Southland. I will, however, stand ready to join four other Justices in overruling it." Thomas said nothing of the sort.
Fast-forward to this week's decision. Thomas is still arguing (into a void - no-one has joined him) that the FAA doesn't apply to state courts. I still find it a little unbelievable how one can have a Supreme Court justice who doesn't believe in stare decisis at all - the man clearly has no idea what it means to be a judge.
Everyone else is for reversing the lower case. So Roberts, of course, gets to pick the writer. Who does he give it to? Yup, little Nino, who now has to write an opinion using Southland. I don't know about you, but I think that's a sly little bit of judicial humour.
(Also, I don't know if anyone else has noticed, but except for 2 Thomas dissents - his other one, weirdly, said in effect that you can sue the Post Office if you slip and fall on an empty mailbag but not a full one (I really think he's either insane or an idiot) - and 2 Stevens dissents, 1 joined by Kennedy, the last 9 cases have all been unanimous. Roberts must be a uniter, not a divider (and Alito hasn't taken part in one of them).)
