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View Diary: Supreme Court rules against consumers. Again. (130 comments)

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  •  After reading Scalia (15+ / 0-)

    I think the issue wqs decided sub silentio - to wit, Scalua does nto address whether the clause is unconscionable under California law. Indstead he appears to decided EVEN IF a contract is unconscionable under California law, if such a finding interferes with arbitration, then it is preempted.

    I do not see how such a ruling can be justified, given the plain text of the FAA granting the "prhibited by law or equity" language of the FAA.

    The decision is in the Bush v. Gore realm of incoherence imo.

    •  To put a fine point on it (10+ / 0-)

      Scalia read this part of the FAA out of the law:

      " save upon such grounds as exist at law or in equity for the revocation of any contract."

      The State of California determined that the arbitration clause in question was unenforceable under California contract law as unconscionable.

      To read Scalia forthrightly, he says states can not rule any arbitration provision unenforceable.

      That seems impossible in light of the clause I quote.

      •  Oh my God (1+ / 0-)
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        did Scalia just overturn the Erie Doctrine?  If arbitration clauses are at issue, there is such a thing as federal common law, under which arbitration clauses are always enforced exactly as written?  "As exist in law and equity" clearly can't refer to California law, so what else is it?  So, not only is there federal common law but it's bad federal common law?

        Reductio ad absurdum.

        "This world demands the qualities of youth: not a time of life but a state of mind[.]" -- Robert F. Kennedy

        by Loge on Wed Apr 27, 2011 at 08:53:35 PM PDT

        [ Parent ]

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