Wednesday round-up
on Dec 16, 2015 at 7:00 am
Commentary on Monday’s opinion in DIRECTV v. Imburgia, holding that the interpretation by the California Court of Appeal of a service agreement that included a binding arbitration provision with a class arbitration waiver is pre-empted by the Federal Arbitration Act, continues. At New Private Law, Greg Klass argues that the Court’s ruling “is the wrong outcome in this case,” but he adds that the opinion “creates very little law.” At Mayer Brown’s Class Defense Blog, Andrew Pincus and Archis Parasharami conclude that the impact of the decision “is to make clear that states may not apply idiosyncratic interpretations of contract provisions in order to evade the FAA.” And at ThinkProgress, Ian Millhiser reads the opinion as signaling that “the Supreme Court is willing to rewrite contracts so that ambiguous terms favor the most powerful party. That’s a bridge the justices previously were not willing to cross.”
Other commentary focuses on last week’s argument in the challenge to the University of Texas at Austin’s consideration of race in its undergraduate admissions process. At Verdict, Michael Dorf looks at whether the state’s “Top Ten Percent Plan,” which is used to admit most of the university’s freshman class, is in fact race-neutral. In another post at Dorf on Law, Dorf considers “whether Justice Scalia invoked racist stereotypes of African Americans” during the oral argument, “as some prominent Democrats charged, and as some Scalia defenders denied.” And in a third post last week, Dorf discussed the possibility of an unprecedented three-way split in the case with only eight Justices participating. In an op-ed for CNN, John McWhorter contends that “Scalia’s comment stemmed not from random intuition but from research showing that a substantial number of black students would do better — and be happier — at schools less selective than the ones they are often admitted to via racial preferences.” And at Real Clear Politics, Stuart Taylor Jr. argues that, although “Scalia ‘s dreadfully worded comments last week during oral argument about racial preferences in college admissions understandably offended many people,” “what he was obviously trying to say made an important point that had nothing to do with racism.”
Briefly:
- At his Election Law Blog, Rick Hasen notes that the election in Hawaii that the Court had stayed was cancelled, and he adds that he “assume[s] this moots the Ninth Circuit case and ends the chances for SCOTUS review.”
- At The Seventy Four, Carolyn Phenicie discusses an amicus brief that was filed in Friedrichs v. California Teachers Association, the challenge to mandatory “fair share” fees for public-sector employees who decline to join a union; a group of twelve parents outline “what they say are the educational consequences of mandatory dues.”
- In The Economist, Steven Mazie discusses the Court’s order in favor of an Alabama woman, temporarily blocking an Alabama Supreme Court order that took away her rights (awarded by a Georgia court) to the children that she was raising with her same-sex partner before the couple broke up; he adds that the Justices “seem likely to take the case” on the merits.
[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in DIRECTV. However, I am not affiliated with the firm.]
