The lawsuit by Nebraska and Oklahoma against Colorado is an interesting development on the legalization issue. This case filed by a state against another state would fall under the original jurisdiction of the Supreme Court which like appellate jurisdiction is discretionary. Texas v. New Mexico, 462 U.S. 554, 570 (1983). They usually appoint a special master to conduct the trial and then review the record if they take the case and if it is justicible.
The lawsuit alleges that Colorado's marijuana legalization provision violates the Supremacy Clause of the United States Constitution. U.S. Const. Art. VI, Clause 2. Under federal law marijuana possession is illegal. 21 U.S.C. Section 812; 21 CFR 1308.11(d). In Section 538 (page 213) of the recently passed Continuing Resolution Omnibus Act, the federal government cannot use federal funds to enforce federal laws that make the possession of marijuana illegal against state licensed medical users of marijuana. That provision does not apply to non-medical possession and in states that have not legalized medical marijuana.
http://news.yahoo.com/2-states-challenge-colorado-marijuana-legalization-205235212.html?soc_src=mediacontentstory&soc_trk=fb
http://www.natlawreview.com/article/supreme-court-asked-to-decide-whether-colorado-s-marijuana-legalization-violates-con
http://www.ouraynews.com/articles/2014/12/19/colorado-states-file-suit-declare-marijuana-law-unconstitutional
http://www.cato.org/blog/nebraska-oklahoma-sue-colorado
http://www.rollingstone.com/politics/news/oklahoma-and-nebraska-sue-colorado-over-dangerous-marijuana-law-20141219
The Law Office of Kurt T. Koehler, 308 1/2 S. State Street Ann Arbor, Michigan (MI) 48198 (Washtenaw County); Copyright 2012 by Kurt Koehler
Showing posts with label U.S. Supreme Court. Show all posts
Showing posts with label U.S. Supreme Court. Show all posts
Saturday, December 20, 2014
Sunday, November 30, 2014
Appellate Case Timelines
The Wall Street Journal has an interesting article about the length of time that recent Supreme Court cases from the last five years were pending by the time they reached the apex court. This article only considers cases where the Supreme Court granted a writ of certiorari which is a very small percentage of the cases that are appealed there.
Not surprisingly most the cases were pending for 4-6 years. Criminal appeals and some interlocutory appeals take priority, but after conviction criminal cases can take far longer than civil cases where collateral habeas corpus review is sought especially in death penatly cases. Some cases may also be remanded back to the lower courts and come back for further review. Other cases may first reach the appellate courts on preliminary procedural matters and once those are resolved return on appeals from the judgment.
http://online.wsj.com/articles/why-supreme-court-cases-are-marathons-1417394399
The Law Office of Kurt T. Koehler, 308 1/2 S. State Street Ann Arbor, Michigan (MI) 48198 (Washtenaw County); Copyright 2012 by Kurt Koehler
Not surprisingly most the cases were pending for 4-6 years. Criminal appeals and some interlocutory appeals take priority, but after conviction criminal cases can take far longer than civil cases where collateral habeas corpus review is sought especially in death penatly cases. Some cases may also be remanded back to the lower courts and come back for further review. Other cases may first reach the appellate courts on preliminary procedural matters and once those are resolved return on appeals from the judgment.
http://online.wsj.com/articles/why-supreme-court-cases-are-marathons-1417394399
The Law Office of Kurt T. Koehler, 308 1/2 S. State Street Ann Arbor, Michigan (MI) 48198 (Washtenaw County); Copyright 2012 by Kurt Koehler
Monday, June 30, 2014
Catching Up
A few months ago I wrote about software patents before the Supreme Court. Instead of issuing a broad ruling the Court merely decided that adding a computer to an abstract idea would not be enough to make it patentable. Abstract ideas are not patentable. The trouble comes in deciding what an abstract idea constitutes.
http://www.vox.com/2014/6/26/5841192/why-last-weeks-ruling-was-bad-news-for-software-patents
http://www.supremecourt.gov/opinions/13pdf/13-298_7lh8.pdf
The Law Office of Kurt T. Koehler, 308 1/2 S. State Street Ann Arbor, Michigan (MI) 48198 (Washtenaw County); Copyright 2012 by Kurt Koehler
http://www.vox.com/2014/6/26/5841192/why-last-weeks-ruling-was-bad-news-for-software-patents
http://www.supremecourt.gov/opinions/13pdf/13-298_7lh8.pdf
The Law Office of Kurt T. Koehler, 308 1/2 S. State Street Ann Arbor, Michigan (MI) 48198 (Washtenaw County); Copyright 2012 by Kurt Koehler
Friday, February 28, 2014
Legal Fee Shifting in Patent Litigation
The Supreme Court is considering lowering the requirements for prevailing defendants in patent litigation to recover the legal fees they incurred in defending the lawsuit.
http://www.bloomberg.com/news/2014-02-26/patent-legal-fees-weighed-in-high-court-case-watched-by-apple.html
http://www.bloomberg.com/news/2014-02-26/patent-legal-fees-weighed-in-high-court-case-watched-by-apple.html
Tuesday, December 31, 2013
Software Patents
Software patents will come before the Supreme Court this term. Generally, abstract mathematics cannot be patented. Yet the USTPO has issued many many software patents over the last several decades. Many of these patents cover simple functions and often overlap with other the claims made by other patents. Many of these patents are owned by non-practicing entities, also known as patent trolls by many, which make and sell nothing. These entities do, however, produce lawsuits against companies and person that are active in the marketplace. Major technology companies also race to accumulate these patents as both a defensive measure against lawsuits and as a sword to attack their competition.
LINKS:
LINKS:
Friday, April 26, 2013
Domestic Drones/UAVs
Florida has adopted a new law that limits the ability of the state to use drones for surveillance.
http://www.cnn.com/2013/04/25/us/florida-drone-law/index.html. The law requires judicial approval before state and local law enforcement may use surveillance drones. The law makes exceptions for instances where there is "imminent danger to life or serious damage to property" or where there is "credible intelligence" which indicates "a high risk of terrorist attack." Currently few law enforcement agencies in Florida have drones. The CNN article states that Miami and Orange County each have two.
In terms of the Fourth Amendment it is important to note that states may adopt more privacy protections, by statute or by constitutional provision, than are guaranteed under the U.S. Constitution. Florida has done so by statute in this instance.
At the federal level the U.S. Supreme Court has decided cases involving surveillance by manned aircraft. California v. Ciraolo, 476 U.S. 207 (1986). In that case the police were not required to obtain a warrant before flying over and observing with the naked eye the backyard of the defendant. Using other equipment beyond human eyesight during the overflight to observe the property would entail a different analysis than Ciraolo. Also the Supreme Court has recently placed an extra emphasis on property rights in the Fourth Amendment context. United States v. Jones, 565 U.S. ___; 132 S.Ct. 945; 181 L.Ed.2d 911(2012). The common law property maxim of cuius est solum eius est usque ad coelum et ad inferos implied that a land owner owned all the land beneath and above his property. This legal maxim is now limited to the area above or below the ground that the landowner can occupy or use in connection with the land so overflights are not prohibited in this regard unless they are too low to the ground. United States v. Causby, 328 U.S. 256; 66 S.Ct. 1062; 90 L.Ed. 1206 (1946). So there might be a property rights based Fourth Amendment argument against drones flying too close to the ground without a warrant.
The Law Office of Kurt T. Koehler, 308 1/2 S. State Street Ann Arbor, Michigan (MI) 48198 (Washtenaw County); Copyright 2012 by Kurt Koehler
http://www.cnn.com/2013/04/25/us/florida-drone-law/index.html. The law requires judicial approval before state and local law enforcement may use surveillance drones. The law makes exceptions for instances where there is "imminent danger to life or serious damage to property" or where there is "credible intelligence" which indicates "a high risk of terrorist attack." Currently few law enforcement agencies in Florida have drones. The CNN article states that Miami and Orange County each have two.
In terms of the Fourth Amendment it is important to note that states may adopt more privacy protections, by statute or by constitutional provision, than are guaranteed under the U.S. Constitution. Florida has done so by statute in this instance.
At the federal level the U.S. Supreme Court has decided cases involving surveillance by manned aircraft. California v. Ciraolo, 476 U.S. 207 (1986). In that case the police were not required to obtain a warrant before flying over and observing with the naked eye the backyard of the defendant. Using other equipment beyond human eyesight during the overflight to observe the property would entail a different analysis than Ciraolo. Also the Supreme Court has recently placed an extra emphasis on property rights in the Fourth Amendment context. United States v. Jones, 565 U.S. ___; 132 S.Ct. 945; 181 L.Ed.2d 911(2012). The common law property maxim of cuius est solum eius est usque ad coelum et ad inferos implied that a land owner owned all the land beneath and above his property. This legal maxim is now limited to the area above or below the ground that the landowner can occupy or use in connection with the land so overflights are not prohibited in this regard unless they are too low to the ground. United States v. Causby, 328 U.S. 256; 66 S.Ct. 1062; 90 L.Ed. 1206 (1946). So there might be a property rights based Fourth Amendment argument against drones flying too close to the ground without a warrant.
The Law Office of Kurt T. Koehler, 308 1/2 S. State Street Ann Arbor, Michigan (MI) 48198 (Washtenaw County); Copyright 2012 by Kurt Koehler
Thursday, December 20, 2012
In Memorium - Judge Bork
I enjoyed taking Judge Bork's class and talking to him while I was at Ave Maria School of Law. He had some great stories particularly about Watergate. It seems my fellow Ave alumni have some interesting stories about him based on the Facebook posts today. Sad to see him go.
I agree with the assessment of one his former law clerks found here:
http://www.foxnews.com/opinion/2012/12/19/judge-bork-knew/
http://www.washingtonpost.com/local/obituaries/judge-robert-h-bork-conservative-icon/2012/12/19/49453de4-c5da-11df-94e1-c5afa35a9e59_story.html
http://www.nytimes.com/2012/12/20/us/robert-h-bork-conservative-jurist-dies-at-85.html?_r=0
http://www.nationalreview.com/corner/336152/judge-bork-rip-steven-g-calabresi
http://www.nationalreview.com/articles/336115/remembering-judge-bork-nro-symposium
http://www.slate.com/articles/news_and_politics/jurisprudence/2012/12/what_if_robert_bork_had_joined_the_supreme_court.html
http://online.wsj.com/article/SB124294934268945409.html
Books by Judge Bork
s/ Kurt Koehler
308 1/2 S. State Street
Ann Arbor, Michigan (MI) 48198 (Washtenaw County);
I agree with the assessment of one his former law clerks found here:
http://www.foxnews.com/opinion/2012/12/19/judge-bork-knew/
http://www.washingtonpost.com/local/obituaries/judge-robert-h-bork-conservative-icon/2012/12/19/49453de4-c5da-11df-94e1-c5afa35a9e59_story.html
http://www.nytimes.com/2012/12/20/us/robert-h-bork-conservative-jurist-dies-at-85.html?_r=0
http://www.nationalreview.com/corner/336152/judge-bork-rip-steven-g-calabresi
http://www.nationalreview.com/articles/336115/remembering-judge-bork-nro-symposium
http://www.slate.com/articles/news_and_politics/jurisprudence/2012/12/what_if_robert_bork_had_joined_the_supreme_court.html
http://online.wsj.com/article/SB124294934268945409.html
Books by Judge Bork
s/ Kurt Koehler
308 1/2 S. State Street
Ann Arbor, Michigan (MI) 48198 (Washtenaw County);
Wednesday, December 12, 2012
The Second Amendment - Outside the Home
The United States Court of Appeals for the Seventh Circuit ruled 2-1 on December 11 in Moore v. Madigan, 12-169 and 12-1788 that Illinois' ban on carrying a weapon ready to use in public was unconstitutional. Ready to use means loaded, easy to reach, and uncased. Carrying an unloaded weapon in public was also illegal if it was uncased and readily accessible. The law had allowed carrying a weapon ready to use on the person's own property, home, the property of another with the owner's permission, or the person's fixed place of business. The law did exempt certain groups including Police, security personnel, hunters, and target shooting club members. Judge Posner wrote the opinion of the court.
The United States Supreme Court has held that the Second Amendment allows a law abiding citizen to bear arms for self-defense in the home. District of Columbia v. Heller, 554 U.S. 570 (2008) (applicable to the federal government); McDonald v. City of Chicago, 561 U.S. 3025 (2010) (applicable to the states). Judge Posner noted that the Supreme Court has not addressed the applicability of the Second Amendment outside of the home. The lower courts ruled that it did not apply outside of the home.
The Seventh Circuit held that the Second Amendment created a right to bear arms for self-defense and that Heller contemplated a right that was broader than just self-defense in the home. Judge Posner declined to revisit the issue of the historical nature of of the right to bear arms and noted that the court could not ignore the Supreme Court's holdings in Heller and McDonald on that point. The language of the Second Amendment in creating distinct rights to 1) keep and 2) bear arms provided some guidance to the court. Judge Posner ruled that the word bear would be awkward to use if the Amendment only applied within the home and decided that the wording implied the right to carry a loaded gun outside of the home. As it may be necessary to defend one's self both in and outside of the home, the law was unconstitutional. Posner noted that a person was more likely to be attacked outside of the home in Chicago than inside it. To confine the right to the home would "divorce the Second Amendment from the right of self-defense described in Heller and McDonald." He also wrote, "A gun is a potential danger to more people if carried in public than just kept in the home. But the other side of this coin is that knowing that many law-abiding citizens are walking the streets armed may make criminals timid. Given that in Chicago, at least, most murders occur outside the home, the net effect on crime rates in general and murder rates in particular of allowing the carriage of guns in public is uncertain both as a matter of theory and empirically." (citations omitted). The court found that restrictions on gun rights must not only be rational, but also include a strong showing that the restriction is vital to public safety over and above body counts. The greater the restriction is then the greater the burden is on the government to justify it.
The court stayed its ruling for six months to give the Illinois legislature time to consider concealed weapon legislation that does not violate the Second Amendment.
Judge Williams dissented from the majority. He also noted that Heller required a historical analysis of the status of the right dating from 1791. Rather than apply the Supreme Court's historical conclusions from Heller, Williams would have held that Heller merely mandated the historical analysis. However, Williams decided that it did not mandate that the court reach the same conclusions as the right to carry a weapon publicly is different right than the right asserted in Heller. He felt that it was a close question and that the matter was unsettled. Under these circumstances and given the state's interest in regulating the safety of its citizens, Judge Williams would have deferred to the judgment of the Illinois state legislature and allowed the law to stand.
http://www.ca7.uscourts.gov/tmp/NZ19NYN2.pdf
http://articles.chicagotribune.com/2012-12-11/news/chi-us-appeals-court-strikes-down-states-concealedcarry-ban-20121211_1_court-strikes-appeals-court-david-sigale
s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)
The United States Supreme Court has held that the Second Amendment allows a law abiding citizen to bear arms for self-defense in the home. District of Columbia v. Heller, 554 U.S. 570 (2008) (applicable to the federal government); McDonald v. City of Chicago, 561 U.S. 3025 (2010) (applicable to the states). Judge Posner noted that the Supreme Court has not addressed the applicability of the Second Amendment outside of the home. The lower courts ruled that it did not apply outside of the home.
The Seventh Circuit held that the Second Amendment created a right to bear arms for self-defense and that Heller contemplated a right that was broader than just self-defense in the home. Judge Posner declined to revisit the issue of the historical nature of of the right to bear arms and noted that the court could not ignore the Supreme Court's holdings in Heller and McDonald on that point. The language of the Second Amendment in creating distinct rights to 1) keep and 2) bear arms provided some guidance to the court. Judge Posner ruled that the word bear would be awkward to use if the Amendment only applied within the home and decided that the wording implied the right to carry a loaded gun outside of the home. As it may be necessary to defend one's self both in and outside of the home, the law was unconstitutional. Posner noted that a person was more likely to be attacked outside of the home in Chicago than inside it. To confine the right to the home would "divorce the Second Amendment from the right of self-defense described in Heller and McDonald." He also wrote, "A gun is a potential danger to more people if carried in public than just kept in the home. But the other side of this coin is that knowing that many law-abiding citizens are walking the streets armed may make criminals timid. Given that in Chicago, at least, most murders occur outside the home, the net effect on crime rates in general and murder rates in particular of allowing the carriage of guns in public is uncertain both as a matter of theory and empirically." (citations omitted). The court found that restrictions on gun rights must not only be rational, but also include a strong showing that the restriction is vital to public safety over and above body counts. The greater the restriction is then the greater the burden is on the government to justify it.
The court stayed its ruling for six months to give the Illinois legislature time to consider concealed weapon legislation that does not violate the Second Amendment.
Judge Williams dissented from the majority. He also noted that Heller required a historical analysis of the status of the right dating from 1791. Rather than apply the Supreme Court's historical conclusions from Heller, Williams would have held that Heller merely mandated the historical analysis. However, Williams decided that it did not mandate that the court reach the same conclusions as the right to carry a weapon publicly is different right than the right asserted in Heller. He felt that it was a close question and that the matter was unsettled. Under these circumstances and given the state's interest in regulating the safety of its citizens, Judge Williams would have deferred to the judgment of the Illinois state legislature and allowed the law to stand.
http://www.ca7.uscourts.gov/tmp/NZ19NYN2.pdf
http://articles.chicagotribune.com/2012-12-11/news/chi-us-appeals-court-strikes-down-states-concealedcarry-ban-20121211_1_court-strikes-appeals-court-david-sigale
s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)
Sunday, October 7, 2012
Alien Tort Statute
The Supreme Court reheard arguments in Koibel v. Royal Dutch Shell this past week. I discussed this case on this blog back in February. The issue before the court now is whether the alien tort statute can be used when the parties and the case have no connection to the United States.
http://www.npr.org/2012/10/01/162110683/high-court-takes-up-human-rights-on-first-day-back
Previous Posts on the Alien Tort Statute:
http://koehlerlegal.blogspot.com/2012/03/alien-tort-statute-revisited.html
http://koehlerlegal.blogspot.com/2012/02/corporate-liability-under-alien-tort.html
s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)
http://www.npr.org/2012/10/01/162110683/high-court-takes-up-human-rights-on-first-day-back
Previous Posts on the Alien Tort Statute:
http://koehlerlegal.blogspot.com/2012/03/alien-tort-statute-revisited.html
http://koehlerlegal.blogspot.com/2012/02/corporate-liability-under-alien-tort.html
s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)
Thursday, March 29, 2012
Health Care Oral Arguments
This week the Supreme Court took up the recent federal health care reforms in oral argument. The questions the justices ask during oral argument do not necessarily indicate how they will rule. It is also not a very good idea to try and predict how the justices will rule on any given issue. Still it is at least likely though not certain that there is a 5-4 majority to strike down at least the individual mandate as exceeding congress' commerce clause powers.
The idea is that congress has enumerated powers under the constitution. The very concept of enumerated powers is meant as a limitation on federal power. It means that the federal government has certain powers, but no powers beyond those. An individual mandate is something that a state could adopt assuming that its own constitution does not prevent that. However, it is probably not something that the federal government can do. At some point there has to be some limitation on congress' power regardless of how far the Supreme Court has pushed the commerce clause since the new deal era. Similarly, the necessary and proper clause cannot justify plenary federal power. It too must have a limit at some point. Of course, the federal government could simply link something such as federal highway funds to a health insurance mandate by requiring that states enact the mandate as a condition for receiving federal money. The federal government required states to set their drinking age at 21 as a condition for receiving highway funds at one point.
The oral argument audio can be found at the links below:
March 26: http://www.supremecourt.gov/oral_arguments/argument_audio_detail.aspx?argument=11-398-Monday
March 27: http://www.supremecourt.gov/oral_arguments/argument_audio_detail.aspx?argument=11-398-Tuesday
March 28: http://www.supremecourt.gov/oral_arguments/argument_audio_detail.aspx?argument=11-400
s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)
The idea is that congress has enumerated powers under the constitution. The very concept of enumerated powers is meant as a limitation on federal power. It means that the federal government has certain powers, but no powers beyond those. An individual mandate is something that a state could adopt assuming that its own constitution does not prevent that. However, it is probably not something that the federal government can do. At some point there has to be some limitation on congress' power regardless of how far the Supreme Court has pushed the commerce clause since the new deal era. Similarly, the necessary and proper clause cannot justify plenary federal power. It too must have a limit at some point. Of course, the federal government could simply link something such as federal highway funds to a health insurance mandate by requiring that states enact the mandate as a condition for receiving federal money. The federal government required states to set their drinking age at 21 as a condition for receiving highway funds at one point.
The oral argument audio can be found at the links below:
March 26: http://www.supremecourt.gov/oral_arguments/argument_audio_detail.aspx?argument=11-398-Monday
March 27: http://www.supremecourt.gov/oral_arguments/argument_audio_detail.aspx?argument=11-398-Tuesday
March 28: http://www.supremecourt.gov/oral_arguments/argument_audio_detail.aspx?argument=11-400
s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)
Tuesday, March 20, 2012
FMLA
Today, the U.S. Supreme Court issued a 5-4 opinion in the case Coleman v. Court of Appeals of Maryland. The issue was whether a state could be sued for money damages for firing an employee for taking time off using the self-care provision of the Family and Medical Leave Act of 1993 (FMLA). The FMLA allows an employee to take up to 12 weeks of unpaid leave to recover from serious illnesses or medical conditions. While states can be sued for money damages for violating the FMLA in terms of unpaid leave for employees who take time off to care for ill family members, in the case of self-care time off they cannot be as state sovereign immunity applies. Instead the employee can sue for injunctive relief to get their job back.
http://www.reuters.com/article/2012/03/20/us-usa-court-medicalleave-idUSBRE82J0PC20120320
s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)
http://www.reuters.com/article/2012/03/20/us-usa-court-medicalleave-idUSBRE82J0PC20120320
s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)
Monday, March 5, 2012
The Alien Tort Statute Revisited
The Supreme Court will rehear argument on Kiobel v. Royal Dutch Shell Petroleum. The arguments last week focused on the issue of whether a corporation could be held liable under international law. I summarized the lower court's ruling in that case in previous blog post. During the oral arguments it was clear that a couple of justices, namely Justice Alito, were more interested in considering whether the law's extraterritoriality was constitutional than whether a corporation could be held liable under international law. It seems that the rationale for the statute when it was passed was to provide a remedy for aliens, usually ambassadors, who were the victims of tortuous activity within the United States.
News Stories:
http://www.bloomberg.com/news/2012-03-05/corporate-human-rights-case-expanded-by-u-s-supreme-court.html
http://www.huffingtonpost.com/2012/03/05/supreme-court-corporate-human-rights-kiobel-royal-dutch-petroleum_n_1322007.html
Oral Argument Transcript 02/28/2012:
http://www.supremecourt.gov/oral_arguments/argument_transcripts/10-1491.pdf
s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)
News Stories:
http://www.bloomberg.com/news/2012-03-05/corporate-human-rights-case-expanded-by-u-s-supreme-court.html
http://www.huffingtonpost.com/2012/03/05/supreme-court-corporate-human-rights-kiobel-royal-dutch-petroleum_n_1322007.html
Oral Argument Transcript 02/28/2012:
http://www.supremecourt.gov/oral_arguments/argument_transcripts/10-1491.pdf
s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)
Sunday, February 26, 2012
Corporate Liability under the Alien Tort Statute of 1789 - Kiobel v. Royal Dutch Shell Petroleum Co.
The U.S. Supreme Court will hear arguments on Feb. 28th in Kiobel v. Royal Dutch Shell Petroleum Co., case number 10-1491. The plaintiff is invoking the Alien Tort Statute of 1789 (ATS), 28 U.S.C. Section 1350, to sue Royal Dutch Shell over allegations that Shell aided the Nigerian government in ending oil exploration protests using violence and torture well over a decade ago. This blog post will simply provide a brief overview of the case.
I. Questions Presented
The questions before the Supreme Court in this case are:
Between 1993 and 1994 Nigerian forces allegedly shot and killed Ogoni residents and attacked Ogoni villages in Nigeria by beating, raping, and arresting residents and destroying or looting their property. The allegations against Shell are that one of Shell's subsidiaries provided 1) transportation to Nigerian forces, 2) allowed their property to be used as a staging ground for attacks, 3) provided food for soldiers involved in the attacks, and 4) provided compensation to the soldiers involved in the attacks. The complaint alleges that these actions constitute aiding and abetting 1) extrajudicial killing, 2) crimes against humanity, 3) torture or cruel, inhuman, and degrading treatment, 4) arbitrary arrest and detention, 5) violation of the rights to life, liberty, security, and association, 6) forced exile, and 7) property destruction. The complaint was filed in 2002 in the Southern District of New York and amended in May 2004. The defendants moved for judgment on the pleadings under FRCP 12(b)(6) for failure to state a claim upon which relief can be granted. The District Court dismissed some of the claims under FRCP 12(b)(6) for failure to state a claim, but refused to dismiss others. The Second Circuit Court of Appeals dismissed all of the claims asserting that a corporation cannot be sued under the ATS in so far as the law of nations portion of the statute is invoked.
III. The Alien Tort Statute
The ATS states that "[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." This statute grants federal district courts original jurisdiction over well-established violations of international law or treaties signed and ratified by the United States including human rights violations that occurred overseas. Between 1789 and 1980 the ATS was used as a basis for jurisdiction only a handful of times. In 1980 the Second Circuit Court of Appeals revived the statute ruling in Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980) that it provides federal courts jurisdiction over tort actions brought by aliens only for violations of the law of nations (customary international law) including war crimes, crimes against humanity, or crimes of a (enemy of all mankind). For instance after a default judgment a jury in the Southern District of New York considering only the issue of damages awarded a $4.5 billion verdict against Radovan Karadzic for acts of genocide committed in Bosnia-Herzegovina by persons under his command. Doe v. Karadzic, 2001 U.S. Dist. LEXIS 12928 (S.D.N.Y. Aug. 28, 2001). As a practical matter suing someone with no assets in the United States would not make much sense as you would not be able to collect on the judgment unless they paid it voluntarily or had some mechanism to enforce the judgment against them where their assets are.
IV. Sosa v. Alverez-Machain
In 2004 the Supreme Court ruled in Sosa v. Alverez-Machain, 542 U.S. 692 (2004) that the Alien Tort Statute provides the federal courts with jurisdiction over these claims regardless of where they occurred, but does not provide a separate cause of action. Instead a cause of action may come from the law of nations which is a limited subset of international law of a core set of norms binding universally on world states (piracy, ambassadors, safe conduct) or a treaty obligation of the United States. The ATS permits an alien plaintiff to file a tort action against any person that the United States has personal jurisdiction over regardless of citizenship and regardless of whether the tortuous act took place within or outside the territory of the United States. In the Sosa case Alverez-Machain was a doctor accused of aiding a Mexican Drug cartel in torturing and killing a U.S. DEA agent by keeping the agent alive to prolong his agony and for the cartel to extract more information from him. Alverez-Machain was indicted in the United States for this crime. Unable to obtain his extradition from Mexico the U.S. government engaged Sosa, the defendant, and some other individuals to kidnap Alverez-Machain from Mexico and bring him to the United States where he was arrested. He was acquitted at his criminal trial. After he returned to Mexico he sued the federal government under the Federal Tort Claims Act, but that case was dismissed. He also filed suit against his Mexican kidnappers under the Alien Tort Statute, but all of his claims were dismissed except for his claim against Sosa. He recovered a $25,000 verdict against Sosa for emotional distress damages. The Supreme Court in an opinion by Justice Souter reversed on the basis that although arbitrary arrest was actionable in the United States and Mexico the Alien Tort Statute was limited to violations of customary international law and U.S. treaty obligations. As Alverez-Machain's kidnapping was not in violation of any well-established binding norm of customary international law or any self-executing treaty signed and ratified by the United States he had no cause of action under the Alien Tort Statute.
Justice Scalia's concurrence in Sosa concluded that there could be no international common law as Erie v. Tompkins abolished the old federal common law and forced federal courts to apply state law in cases heard under diversity jurisdiction. Scalia reasoned that the international common law, referred to in the Alien Tort Statute as violations of the law of nations, was really part of federal common law and that it was abolished by Erie. That would leave violations of self-executing treaties signed and ratified by the United States as the only basis for a cause of action using the jurisdiction provided by the Alien Tort Statute unless one were to assume that what Scalia really meant was that Alien Tort Statute jurisdiction is analogous to diversity jurisdiction and that the court should apply the laws of the country where the violation occurred. Some commentators think that this is unlikely to be the case as these claims receive federal jurisdiction as federal questions relating to a federal statute (the Alien Tort Statute of 1789) and do not fall under diversity jurisdiction making Erie inapplicable. Another view could be that the Alien Tort Statute is a separate basis of jurisdiction independent from federal question and diversity jurisdiction. Both federal question and diversity jurisdiction were powers that could be granted to the federal judiciary by congress provided that congress passed a law doing so. Congress passed a law granting the judiciary diversity jurisdiction in 1789, but did not pass a law granting the courts federal question jurisdiction until 1801. That federal question jurisdiction law was repealed the next year and not restored until 1875. Apparently, congress' reluctance to pass federal question jurisdiction into law was based on fears that the federal judiciary might become too powerful. Hence the Alien Tort Claims jurisdiction is actually older than federal question jurisdiction which is an argument for considering it as an independent separate basis of federal courts jurisdiction. However, it is also possible to argue that congress created the Alien Tort Claims Act in 1789 as a more limited version of the federal question jurisdiction that it declined to extend in full at that time. If this argument is accepted then one could conclude that the jurisdiction provided by the Alien Tort Claims Act was perhaps subsumed into federal question jurisdiction when congress finally granted it to the federal courts in 1875. The main problem with that is that congress has never repealed it.
V. The ATS After Sosa
The Court in Sosa left open a number of questions including what constitutes the law of nations and which treaties are actionable, the asymmetry of right if an alien plaintiff enjoys rights under the ATS which a U.S. Citizen would not, and whether entities could be sued under the ATS as Sosa was only concerned with natural persons. The last question on whether entities such as corporations could be sued under the ATS is now before the Court in Kiobel.
VI. The Second Circuit Court of Appeals Opinion in Kiobel
The Second Circuit Court of Appeals ruled that a corporation could not be sued under the ATS. That corporations are liable under domestic law does not mean that they are liable under the law of nations or customary international law. Customary international law or the law of nations includes "those standards, rules, or customs (a) affecting the relationship between states or between an individual and foreign state, and (b) used by those states for their common good and/or dealings inter se." ITT v. Vencap, Ltd, 519 F.2d 1001, 1015 (2d Cir. 1975). The majority asserts that before World War II the law of nations only concerned states and relations between them. The Second Circuit found that while customary international law has expanded since World War II to encompass individuals in addition to states, that expansion has "been limited to natural persons--not 'juridical' persons such as corporations--because the moral responsibility for a crime so heinous and unbounded as to rise to the level of an 'international crime' has rested solely with the individual men and women who have perpetrated it." Kiobel v. Royal Dutch Shell Petroleum Co., 621 F.3d 111, 119 (2nd Cir. 2010). That expansion to include natural persons within customary international law has been limited to war crimes tribunals such as the Nuremberg trials and the International Criminal Court for "a limited number of international crimes--including war crimes, crimes against humanity (such as genocide), and torture..." Id. at 120. The Second Circuit held that "[l]ooking to international law, we find a jurisprudence, first set forth in Nuremberg and repeated by every international tribunal of which we are aware, that offenses against the law of nations (i.e., customary international law) for violations of human rights can be charged against States and against individual men and women but not against juridical persons such as corporations. As a result, although customary international law has sometimes extended the scope of liability for a violation of a given norm to individuals, it has never extended the scope of liability to a corporation." Id. The Court noted that nothing precluded a suit against a corporation's employees, managers, officers, or directors as individual natural persons under the ATS and that congress could amend the ATS to allow for corporate defendants or there might be liability under laws other than the ATS. Id. at 149.
Judge Leval concurred in the result of dismissing the complaint as the complaint did not plead specific facts supporting a plausible inference that the aider and abetter acted with a purpose to bring about human rights abuses. However, he strongly disagreed with the holding that corporations were not subject to the ATS stating that the majority position "deals a substantial blow to international law and its undertaking to protect fundamental human rights. . . . Without any support in either the precedents or the scholarship of international law, the majority take the position that corporations, and other juridical entities, are not subject to international law, and for that reason such violators of fundamental human rights are free to retain any profits so earned without liability to their victims." Id. at 149-150 (Leval, J., concurring). In response to the majority's contention that international tribunals have been established without jurisdiction to impose punishment on corporations Judge Leval states, "[t]he reasons why international tribunals have been established without jurisdiction to impose criminal liability on corporations have to do solely with the theory and objectives of criminal punishment, and have no bearing on civil compensatory liability. The view is widely held among the nations of the world that criminal punishments (under domestic law, as well as international law) are inappropriate for corporations." Id. at 151 (Leval, J., concurring). Leval also cited the 11th Circuit rule that corporations can be sued under the ATS as support for his position.
Links:
Sosa v. Alverez-Machain: http://articles.cnn.com/2004-07-12/justice/sebok.alien.tort.claims_1_human-rights-alien-tort-claims-act-federal-court/4?_s=PM:LAW
Kiobel v. Royal Dutch Shell Petroleum:
http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/10-1491.htm
Second Circuit Ruling: http://www.law.smu.edu/getmedia/4c249363-9801-4193-876a-c5600aafa903/Kiobel-v-Royal-Dutch-Petroleum-Co
http://www.chicagotribune.com/news/sns-rt-us-usa-corporations-humanrightstre81n22o-20120224,0,6647821.story
http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202516875754&slreturn=1
s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)
I. Questions Presented
The questions before the Supreme Court in this case are:
1. Whether the issue of corporate civil tort liability under the Alien Tort Statute ("ATS"), 28 U.S.C. § 1350, is a merits question, as it has been treated by all courts prior to the decision below, or an issue of subject matter jurisdiction, as the court of appeals held for the first time.
2. Whether corporations are immune from tort liability for violations of the law of nations such as torture, extrajudicial executions or genocide, as the court of appeals decisions provides, or if corporations may be sued in the same manner as any other private party defendant under the ATS for such egregious violations, as the Eleventh Circuit has explicitly held.
The way the Supreme Court has worded the second question seems to favor the Plaintiffs especially the use of the word "immune" which the Second Circuit Court of Appeals majority actually refused to use in their holding along with the reference to the Eleventh Circuit's holding that corporations could be sued under the ATS. The 11th Circuit Court of Appeals has held that a corporation could be held liable under the ATS in Sinaltrainal v. Coca-Cola Co. 578 F.3d 1252, 1263 (11th Cir. 2009); Romero v. Drummond Co., 552 F.3d 1303, 1315 (11th Cir. 2008); Aldana v. DelMonte Fresh Produce N.A., 416 F.3d 1242, 1253 (11th Cir. 2005).
II. Case Facts
II. Case Facts
Between 1993 and 1994 Nigerian forces allegedly shot and killed Ogoni residents and attacked Ogoni villages in Nigeria by beating, raping, and arresting residents and destroying or looting their property. The allegations against Shell are that one of Shell's subsidiaries provided 1) transportation to Nigerian forces, 2) allowed their property to be used as a staging ground for attacks, 3) provided food for soldiers involved in the attacks, and 4) provided compensation to the soldiers involved in the attacks. The complaint alleges that these actions constitute aiding and abetting 1) extrajudicial killing, 2) crimes against humanity, 3) torture or cruel, inhuman, and degrading treatment, 4) arbitrary arrest and detention, 5) violation of the rights to life, liberty, security, and association, 6) forced exile, and 7) property destruction. The complaint was filed in 2002 in the Southern District of New York and amended in May 2004. The defendants moved for judgment on the pleadings under FRCP 12(b)(6) for failure to state a claim upon which relief can be granted. The District Court dismissed some of the claims under FRCP 12(b)(6) for failure to state a claim, but refused to dismiss others. The Second Circuit Court of Appeals dismissed all of the claims asserting that a corporation cannot be sued under the ATS in so far as the law of nations portion of the statute is invoked.
III. The Alien Tort Statute
The ATS states that "[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." This statute grants federal district courts original jurisdiction over well-established violations of international law or treaties signed and ratified by the United States including human rights violations that occurred overseas. Between 1789 and 1980 the ATS was used as a basis for jurisdiction only a handful of times. In 1980 the Second Circuit Court of Appeals revived the statute ruling in Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980) that it provides federal courts jurisdiction over tort actions brought by aliens only for violations of the law of nations (customary international law) including war crimes, crimes against humanity, or crimes of a (enemy of all mankind). For instance after a default judgment a jury in the Southern District of New York considering only the issue of damages awarded a $4.5 billion verdict against Radovan Karadzic for acts of genocide committed in Bosnia-Herzegovina by persons under his command. Doe v. Karadzic, 2001 U.S. Dist. LEXIS 12928 (S.D.N.Y. Aug. 28, 2001). As a practical matter suing someone with no assets in the United States would not make much sense as you would not be able to collect on the judgment unless they paid it voluntarily or had some mechanism to enforce the judgment against them where their assets are.
IV. Sosa v. Alverez-Machain
In 2004 the Supreme Court ruled in Sosa v. Alverez-Machain, 542 U.S. 692 (2004) that the Alien Tort Statute provides the federal courts with jurisdiction over these claims regardless of where they occurred, but does not provide a separate cause of action. Instead a cause of action may come from the law of nations which is a limited subset of international law of a core set of norms binding universally on world states (piracy, ambassadors, safe conduct) or a treaty obligation of the United States. The ATS permits an alien plaintiff to file a tort action against any person that the United States has personal jurisdiction over regardless of citizenship and regardless of whether the tortuous act took place within or outside the territory of the United States. In the Sosa case Alverez-Machain was a doctor accused of aiding a Mexican Drug cartel in torturing and killing a U.S. DEA agent by keeping the agent alive to prolong his agony and for the cartel to extract more information from him. Alverez-Machain was indicted in the United States for this crime. Unable to obtain his extradition from Mexico the U.S. government engaged Sosa, the defendant, and some other individuals to kidnap Alverez-Machain from Mexico and bring him to the United States where he was arrested. He was acquitted at his criminal trial. After he returned to Mexico he sued the federal government under the Federal Tort Claims Act, but that case was dismissed. He also filed suit against his Mexican kidnappers under the Alien Tort Statute, but all of his claims were dismissed except for his claim against Sosa. He recovered a $25,000 verdict against Sosa for emotional distress damages. The Supreme Court in an opinion by Justice Souter reversed on the basis that although arbitrary arrest was actionable in the United States and Mexico the Alien Tort Statute was limited to violations of customary international law and U.S. treaty obligations. As Alverez-Machain's kidnapping was not in violation of any well-established binding norm of customary international law or any self-executing treaty signed and ratified by the United States he had no cause of action under the Alien Tort Statute.
Justice Scalia's concurrence in Sosa concluded that there could be no international common law as Erie v. Tompkins abolished the old federal common law and forced federal courts to apply state law in cases heard under diversity jurisdiction. Scalia reasoned that the international common law, referred to in the Alien Tort Statute as violations of the law of nations, was really part of federal common law and that it was abolished by Erie. That would leave violations of self-executing treaties signed and ratified by the United States as the only basis for a cause of action using the jurisdiction provided by the Alien Tort Statute unless one were to assume that what Scalia really meant was that Alien Tort Statute jurisdiction is analogous to diversity jurisdiction and that the court should apply the laws of the country where the violation occurred. Some commentators think that this is unlikely to be the case as these claims receive federal jurisdiction as federal questions relating to a federal statute (the Alien Tort Statute of 1789) and do not fall under diversity jurisdiction making Erie inapplicable. Another view could be that the Alien Tort Statute is a separate basis of jurisdiction independent from federal question and diversity jurisdiction. Both federal question and diversity jurisdiction were powers that could be granted to the federal judiciary by congress provided that congress passed a law doing so. Congress passed a law granting the judiciary diversity jurisdiction in 1789, but did not pass a law granting the courts federal question jurisdiction until 1801. That federal question jurisdiction law was repealed the next year and not restored until 1875. Apparently, congress' reluctance to pass federal question jurisdiction into law was based on fears that the federal judiciary might become too powerful. Hence the Alien Tort Claims jurisdiction is actually older than federal question jurisdiction which is an argument for considering it as an independent separate basis of federal courts jurisdiction. However, it is also possible to argue that congress created the Alien Tort Claims Act in 1789 as a more limited version of the federal question jurisdiction that it declined to extend in full at that time. If this argument is accepted then one could conclude that the jurisdiction provided by the Alien Tort Claims Act was perhaps subsumed into federal question jurisdiction when congress finally granted it to the federal courts in 1875. The main problem with that is that congress has never repealed it.
V. The ATS After Sosa
The Court in Sosa left open a number of questions including what constitutes the law of nations and which treaties are actionable, the asymmetry of right if an alien plaintiff enjoys rights under the ATS which a U.S. Citizen would not, and whether entities could be sued under the ATS as Sosa was only concerned with natural persons. The last question on whether entities such as corporations could be sued under the ATS is now before the Court in Kiobel.
VI. The Second Circuit Court of Appeals Opinion in Kiobel
The Second Circuit Court of Appeals ruled that a corporation could not be sued under the ATS. That corporations are liable under domestic law does not mean that they are liable under the law of nations or customary international law. Customary international law or the law of nations includes "those standards, rules, or customs (a) affecting the relationship between states or between an individual and foreign state, and (b) used by those states for their common good and/or dealings inter se." ITT v. Vencap, Ltd, 519 F.2d 1001, 1015 (2d Cir. 1975). The majority asserts that before World War II the law of nations only concerned states and relations between them. The Second Circuit found that while customary international law has expanded since World War II to encompass individuals in addition to states, that expansion has "been limited to natural persons--not 'juridical' persons such as corporations--because the moral responsibility for a crime so heinous and unbounded as to rise to the level of an 'international crime' has rested solely with the individual men and women who have perpetrated it." Kiobel v. Royal Dutch Shell Petroleum Co., 621 F.3d 111, 119 (2nd Cir. 2010). That expansion to include natural persons within customary international law has been limited to war crimes tribunals such as the Nuremberg trials and the International Criminal Court for "a limited number of international crimes--including war crimes, crimes against humanity (such as genocide), and torture..." Id. at 120. The Second Circuit held that "[l]ooking to international law, we find a jurisprudence, first set forth in Nuremberg and repeated by every international tribunal of which we are aware, that offenses against the law of nations (i.e., customary international law) for violations of human rights can be charged against States and against individual men and women but not against juridical persons such as corporations. As a result, although customary international law has sometimes extended the scope of liability for a violation of a given norm to individuals, it has never extended the scope of liability to a corporation." Id. The Court noted that nothing precluded a suit against a corporation's employees, managers, officers, or directors as individual natural persons under the ATS and that congress could amend the ATS to allow for corporate defendants or there might be liability under laws other than the ATS. Id. at 149.
Judge Leval concurred in the result of dismissing the complaint as the complaint did not plead specific facts supporting a plausible inference that the aider and abetter acted with a purpose to bring about human rights abuses. However, he strongly disagreed with the holding that corporations were not subject to the ATS stating that the majority position "deals a substantial blow to international law and its undertaking to protect fundamental human rights. . . . Without any support in either the precedents or the scholarship of international law, the majority take the position that corporations, and other juridical entities, are not subject to international law, and for that reason such violators of fundamental human rights are free to retain any profits so earned without liability to their victims." Id. at 149-150 (Leval, J., concurring). In response to the majority's contention that international tribunals have been established without jurisdiction to impose punishment on corporations Judge Leval states, "[t]he reasons why international tribunals have been established without jurisdiction to impose criminal liability on corporations have to do solely with the theory and objectives of criminal punishment, and have no bearing on civil compensatory liability. The view is widely held among the nations of the world that criminal punishments (under domestic law, as well as international law) are inappropriate for corporations." Id. at 151 (Leval, J., concurring). Leval also cited the 11th Circuit rule that corporations can be sued under the ATS as support for his position.
Links:
Sosa v. Alverez-Machain: http://articles.cnn.com/2004-07-12/justice/sebok.alien.tort.claims_1_human-rights-alien-tort-claims-act-federal-court/4?_s=PM:LAW
Kiobel v. Royal Dutch Shell Petroleum:
http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/10-1491.htm
Second Circuit Ruling: http://www.law.smu.edu/getmedia/4c249363-9801-4193-876a-c5600aafa903/Kiobel-v-Royal-Dutch-Petroleum-Co
http://www.chicagotribune.com/news/sns-rt-us-usa-corporations-humanrightstre81n22o-20120224,0,6647821.story
http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202516875754&slreturn=1
s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)
Friday, February 24, 2012
Arbitration Clauses and Public Policy - Marmet Health Care Center v. Brown
Marmet Health Care Center v. Brown was decided by the U.S. Supreme Court on Feb. 21, 2012 in a per curium (meaning through the court) opinion consolidating 3 arbitration clause cases from West Virginia. The Supreme Court of Appeals of West Virginia had held that as a matter of public policy all arbitration agreements applying to personal injury or wrongful death negligence claims against nursing homes were unenforceable if they were entered into prior to occurence resulting in the claim. Two of the arbitration clauses in question required the parties to arbitrate all disputes except for claims to collect late payments owed by patients and required the party filing the arbitration to be responsible for the filing fee with the American Arbitration Association. The third arbitration agreement required that all claims be submitted to arbitration.
The U.S. Supreme Court reversed in an unsigned opinion and emphasized that state and federal courts must enforce the Federal Arbitration Act, 9 U.S.C. Section 1 (FAA) for all arbitration agreements. The Supreme Court of West Virginia had considered the possibility that the FAA might preempt state policy considerations, but it concluded that congress did not intend the FAA to apply to injury or wrongful death suits that are only collaterally related to an agreement affecting interstate commerce. The U.S. Supreme Court disagreed and found not exceptions to the application of the FAA existed. It emphasized that a state law prohibiting arbitration of a certain kind of claim will always be preempted by the FAA.
Another holding of the state court was that the arbitration clauses were unconcionable. However, the U.S. Supreme Court vacated this portion of the state court ruling as well as it was unclear to how much this finding was influenced by the same general public policy considerations that underpinned the court's failure to apply the FAA. The Supreme Court remanded the case to the Supreme Court of Appeals of West Virginia to decide whether state common law would render the arbitration claues unenforceable for unconcionability or any other grounds that "are not specific to arbitration and pre-empted by the FAA."
This case serves to underline the fact of life that arbitration agreements are always going to be enforced by courts to bar any other forum for resolving disputes covered by the agreement unless there is some other contractual issue that renders the agreement unenforceable such as unconcionability. This is significant as arbitration awards are very difficult to overturn in most states unless you can show the arbitrator was biased. If you have an enforceable contract then public policy will not render an arbitration clause unenforceable as the FAA preempts that public policy. For instance arbitration agreements that require the application of religious or cultural laws or norms would be enforceable regardless of any public policy disapproving of or disfavoring those religious or cultural laws as the FAA would preempt that public policy. However, if those underlying rules of arbitration could be shown to be unconscionable or some other precept of contract law applied in a particular case to render the agreement unenforceable for reasons not specific to arbitration then the clause might be unenforceable in that instance.
Generally people enter into contracts assuming that nothing will go wrong and that no disputes will arise. This leads them to overlook arbitration clauses. Of course, disputes will happen at some point and become inevitable if you enter into enough contracts over the course of time. The lesson here is that you might want to closely review the arbitration clause in any contract you enter into that has one. You will most likely be bound by it. Depending on who you are dealing with some aspects of an arbitration agreement may be negotiable.
Marmet Health Care Center v. Brown is located at www.supremecourt.gov/opinions/11pdf/11-391.pdf
s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)
The U.S. Supreme Court reversed in an unsigned opinion and emphasized that state and federal courts must enforce the Federal Arbitration Act, 9 U.S.C. Section 1 (FAA) for all arbitration agreements. The Supreme Court of West Virginia had considered the possibility that the FAA might preempt state policy considerations, but it concluded that congress did not intend the FAA to apply to injury or wrongful death suits that are only collaterally related to an agreement affecting interstate commerce. The U.S. Supreme Court disagreed and found not exceptions to the application of the FAA existed. It emphasized that a state law prohibiting arbitration of a certain kind of claim will always be preempted by the FAA.
Another holding of the state court was that the arbitration clauses were unconcionable. However, the U.S. Supreme Court vacated this portion of the state court ruling as well as it was unclear to how much this finding was influenced by the same general public policy considerations that underpinned the court's failure to apply the FAA. The Supreme Court remanded the case to the Supreme Court of Appeals of West Virginia to decide whether state common law would render the arbitration claues unenforceable for unconcionability or any other grounds that "are not specific to arbitration and pre-empted by the FAA."
This case serves to underline the fact of life that arbitration agreements are always going to be enforced by courts to bar any other forum for resolving disputes covered by the agreement unless there is some other contractual issue that renders the agreement unenforceable such as unconcionability. This is significant as arbitration awards are very difficult to overturn in most states unless you can show the arbitrator was biased. If you have an enforceable contract then public policy will not render an arbitration clause unenforceable as the FAA preempts that public policy. For instance arbitration agreements that require the application of religious or cultural laws or norms would be enforceable regardless of any public policy disapproving of or disfavoring those religious or cultural laws as the FAA would preempt that public policy. However, if those underlying rules of arbitration could be shown to be unconscionable or some other precept of contract law applied in a particular case to render the agreement unenforceable for reasons not specific to arbitration then the clause might be unenforceable in that instance.
Generally people enter into contracts assuming that nothing will go wrong and that no disputes will arise. This leads them to overlook arbitration clauses. Of course, disputes will happen at some point and become inevitable if you enter into enough contracts over the course of time. The lesson here is that you might want to closely review the arbitration clause in any contract you enter into that has one. You will most likely be bound by it. Depending on who you are dealing with some aspects of an arbitration agreement may be negotiable.
Marmet Health Care Center v. Brown is located at www.supremecourt.gov/opinions/11pdf/11-391.pdf
s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)
Subscribe to:
Posts (Atom)