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nursing homes, powers of attorney, arbitration: kindred nursing centers v clark May 15, 2017

Posted by Bradley in : dispute resolution , add a comment

In the Fall of 2015 I assigned Extendicare Homes v Whisman to my contracts students as an interesting basis for exploring the extent to which contract formation issues might fall outside the pre-emption ruling in AT&T v Concepcion, an issue that many courts had focused on. The Supreme Court has now held (in Kindred Nursing Centers v Clark) that the critical issue is not whether the contract law issue relates to formation or not but whether the relevant rule is a rule that focuses on arbitration (the court points out that in AT&T v Concepcion the court had discussed duress, which applies in the context of contract formation). The Kentucky rule that required specific authority to the grantee of a power of attorney to waive the constitutional right to a jury is a rule that focuses on arbitration and is thus pre-empted by the FAA. Arbitration agreements should be treated “on an equal footing with all other contracts.” Justice Kagan emphasizes in the opinion that there is nothing new here: this is entirely consistent with the Court’s prior decisions.

I think it’s pretty clear that the decision is consistent with this prior case law, and that the court is correct that allowing this sort of getting round the pre-emption issue would invite further acts that could undermine the idea of pre-emption entirely.

But at the same time, duress and lack of authority of an agent to enter into a contract seem to me to involve two very different sorts of formation issue. The language of section 2 of the FAA, “save upon such grounds as exist at law or in equity for the revocation of any contract” seems more applicable to duress (where there seems to be a contract which is treated by the court, in its discretion, as unenforceable) than to the agent’s authority where the court would merely recognize that there was never any valid contract because the party concluding it id not have the power to do so. Conflating the two types of case is not analytically clearly correct. And recognizing this also shows that the floodgates argument – to allow this sort of approach would end up undermining pre-emption altogether – is completely oversold.

commission aims at italian torpedo December 14, 2010

Posted by Bradley in : dispute resolution , 1 comment so far

The Commission has announced a number of proposals to reform civil justice, including this significant one:

Bringing legal certainty to choice of court agreements between companies: In business-to-business relations, companies often agree to settle all disputes in one particular court. However, litigation tactics have led to a situation where the validity of such choice of court agreements is challenged in a court in another EU Member State in order to delay the settlement of the dispute — a practice sometimes referred to as “Italian torpedo”. The Commission proposed today measures to end such abusive tactics by ensuring that the court chosen in the choice of court agreement is always first to determine whether the agreement is valid or not.

a supreme court for the uk August 29, 2009

Posted by Bradley in : dispute resolution , comments closed

In just over a month’s time the UK’s new Supreme Court will start work in a new building (well, a repurposed older building), and it has a new website. In a very British sort of a way, the new website emphasises both continuity and change:

1 October 2009 marks a defining moment in the constitutional history of the United Kingdom: transferring judicial authority away from the House of Lords, and creating a Supreme Court for the United Kingdom in the historic setting of the former Middlesex Guildhall on Parliament Square.

The old Law Lords will move to the new building, becoming the first Justices of the Supreme Court, and they will also sometimes be operating as the Judicial Committee of the Privy Council. But whereas there was just one House of Lords they will now be among a number of Justices of different Supreme Courts around the world.

The aims of the website seem a bit confused. Bits of it seem to be designed to attract attention rather than to assume that people will pay attention because the court is important. The US Supreme Court’s website makes this assumption, and seems more serious by doing so. In contrast, I find the UK Supreme Court page about the significance of the court to the UK to be a bit weird:

The Supreme Court has been established to achieve a complete separation between the United Kingdom’s senior Judges and the Upper House of Parliament, emphasising the independence of the Law Lords and increasing the transparency between Parliament and the courts….
For instance, in their previous role as the Appellate Committee of the House of Lords, the Justices gave landmark rulings on the legality of the Hunting Act 2004 under European law, and whether or not a schoolgirl could be prevented from wearing traditional cultural dress.

The House of Lords never seemed to have much of a problem with independence (although the Law Lords did sometimes interfere a bit in the legislative process and then of course they would have to interpret the results of the legislative process…) but what does this “increasing the transparency between Parliament and the courts” language mean? And doesn’t the reference to just two high profile cases make it seem like what the court will do is just more reality tv (proceedings will be filmed)?

The UK Supreme Court’s website is also very corporate, telling us about the Court’s Executive Team and providing an organisational chart. I care much more about the substance of what the new court does than about who its administrators are.