Tuesday, April 27, 2010

Justice Scalia -- Man of the (Non-Stupid) People


Here's an excellent roundup of the oral arguments (and related coverage) before the Supremes on the arbitration issues raised in the Rent-a-Center case by one of the co-counsel for the respondents.

Obviously there's a point of view being expressed here, but get a load of this comment by Justice Scalia:

Justice Scalia's questions yesterday showed that he has little empathy for those who find themselves in the position of signing extremely one-sided arbitration agreements because of unequal bargaining power, often as a precondition of employment or the receipt of essential goods and services. Here's what he said:

JUSTICE SCALIA: you can be a stupid person who voluntarily signs an unconscionable contract. Now, the courts may protect you because you are stupid, but you haven't been coerced.

That's an actual quotation from the argument, not a caricature. I suppose this means that, in Justice Scalia's world, a person who takes a low-wage job as a dishwasher, say, or as a line worker at a chicken processing plant, because it's the only job he or she can get, is simply "stupid" if they sign an employment contract containing various unconscionably one-sided terms.

Now I know why they don't want cameras recording Supreme Court arguments.

Speaking of the Supremes, none other than our recent visitor and former Justice Sandra Day O'Connor joined in a decision of the 11th Circuit yesterday that reversed the SD FL on a case involving the implosion of Colonial Bank.

Any way we can get her back?

16 comments:

  1. Scalia "fair and balanced."

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  2. No. 1 at being a jackass.

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  3. Ok swlip, I mean 10;06.

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  4. If Sandy baby is in town next week, do you think she might want to hoist a few at our Cinco de shumie on Brickell?

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  5. ONE WEEK UNTIL CINCO DE SHUMIE. POST CINCO DE SHUMIE PLANS HERE.

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  6. pin the tail on the donkey

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  7. Hahahaha! What he's saying is really very simple and, at least among commercial litigators, not at all controversial: Although you may have a chance at voiding a contract based on unconscionability, the fact that it may be unconscionable does not mean that you were coerced into signing it.

    Stupid people have trouble understanding the distinction.

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  8. "my momma always used to say stupid is as stupid does"

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  9. As usual swlip misses the point. Contracts of adhesion are unconscionable because they are the product of economic coercion, by virtue of social pressures and lack of alternatives. I suppose Scalia also thinks children voluntarily entered into sweat shops to work 16 hour days back in the early 20th century.

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  10. 10:55 - You obviously went to law school before Carnival v. Shute was decided, so I'll forgive you for not apprehending the fact that, yes indeed, adhesion contracts may be enforced where their terms are reasonably communicated and the customer is on fair notice of their terms.

    I've won several cases enforcing adhesion contracts. Look up Judge Altonaga's opinion in Ashley Harts v. Carnival Corp. (speaking of minors!), or the 11th Circuit's opinion in Bautista v. Star Cruises, and prepare to join the 21st century.

    Geez.

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  11. Swilp, always a pleasure.

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  12. fake Atticus FinchApril 28, 2010 at 7:48 PM

    My career goal: enforcing adhesion contracts.

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  13. I'm not surprised that there are such one-sided contracts with rental centers. I recently saw a similar one in the case of a rug/rags/textile service. The opt-out parameters were the most ridiculous jump-through-hoops things I've ever seen. LOL.

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