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Tuesday, March 12, 2013

Oddball SCOTUS Cases

OddThe purpose of this post is to crowdsource an issue that Suja Thomas has identified.

I got the idea from seeing Suja’s presentation at AALS this year, in which she argued that Twombly, Wal-Mart, and Ricci are oddball cases—cases with atypical facts in which the Court made broad changes to the law in a way that significantly affects cases with more typical facts.  She has written an article entitled The Oddball Doctrine: How Atypical Cases Make Bad Law in which she argues that the Court should exercise restraint by not making  legal changes in these types of cases.  During Suja’s presentation, it occurred to me that the Oddball Doctrine could apply to many of the Court’s recent arbitration decisions.

An example is ATT Mobility v. Concepción, in which the Court enforced a class-action waiver in a consumer arbitration agreement.  The arbitration agreement at issue in Concepción strongly favored the consumer – for example, it included a provision (added by AT&T after the Concepcións had filed suit) requiring AT&T to pay $7500 to a consumer if an arbitrator awarded the consumer an amount greater than AT&T’s largest settlement offer at the time of arbitrator selection.  Anyone even vaguely familiar with consumer arbitration knows that 99.99% of the time they skew very strongly in favor of the company – not the consumer. 

Had the Court enforced a class-action waiver in the far-more-typical consumer-arbitration factual scenario in which the prohibition of a class action makes it impossible for consumers to individually advance their low-dollar claims, the Court would have invited a political (perhaps Congressional) backlash.  But by choosing for certiorari that one-in-a-million case in which the class-action waiver favored the consumer, the Court was able to create a broadly applicable legal rule permitting companies to prohibit class actions in all arbitration agreements.

My new article argues that the Supreme Court recently has chosen for its arbitration docket a set of cases with wholly atypical fact patterns in what appears to be a deliberate effort – successful so far – to advance its pro-arbitration policy agenda without provoking a political backlash.  See Oddball Arbitration.  My question for Prawfsblawg readers is: do you see Thomas’s Oddball Doctrine in other areas of the law?

Rick Bales

Posted by Workplace Prof on March 12, 2013 at 11:16 AM in Civil Procedure, Constitutional thoughts, Workplace Law | Permalink

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Rick, I haven't read the article yet. Does it consider that the strategic selection you describe may be as much a result of the RP defendants in a case like this? Surely, AT&T's lawyers knew it was unwise to provoke the Justice into seeing things through the lens of equity. While I agree that some Justices were probably not bending over backwards to rescue plaintiffs, I think a lot of this reflects their basic unfamiliarity with how contracting works in the real world.

In other words, the strategy I think you're describing could certainly be the result of a conscious agenda. Probably it is. But, I wonder how you would tease out the lawyer-led strategy that relies on softer biases or blind spots among the Justices? (Rereading your post, perhaps my question is best directed to Professor Thomas, but I welcome any thoughts).

Posted by: Adam Scales | Mar 12, 2013 12:45:10 PM

I think the story of how Concepcion came to be the big test case on unconscionability is interesting. There is a strategic interaction between repeat-player litigants and the Court. I wrote about this a bit on this blog a couple years ago:
http://prawfsblawg.blogs.com/prawfsblawg/2011/05/atts-long-game-on-unconscionability.html

Posted by: Aaron | Mar 12, 2013 3:10:20 PM

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