Friday, April 29, 2011

AT&T Mobility LLC v. Concepcion: Whose Analysis Controls, if Any? Some Grist For The Mill:

So, having given myself a full day to absorb the Court’s opinion, the most striking (and perplexing) point in my mind is that the Court does not expressly order the class allegations stricken, or even order the case to arbitration. Rather, the Court only deems the Discover Bank rule to be pre-empted:
Because it “stands as an obstacle to the accomplishmentand execution of the full purposes and objectives of Congress,” Hines v. Davidowitz, 312 U. S. 52, 67 (1941), California’s Discover Bank rule is preempted by the FAA. The judgment of the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
See Slip Opinion, at 18.

Thus, to understand what the Court’s opinion means, it would seem that one must look beyond the majority’s holding that the Discovery Bank rule is preempted and examine the more complex issue of the applicable standard that must be applied by the courts below moving forward. There may not be a simple answer to this question, however.  As Justice Thomas only joined the five member majority in its holding, parting ways with regard to the underlying rationale, an issue exists as to whose analysis will deemed to prevail.

As a general rule, “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds….’” See Marks v. United States, 430 U.S. 188, 193 (1977).  However, applying the Marks rule may not be as simple as one may think. See United States v. Kratt, 579 F.3d 558, 562 (6th Cir., 2009) (“That is easier said than done. Sometimes it is possible to identify the concurring opinion that ‘is a logical subset’ of the other opinion (or opinions). [] And sometimes it is not, making Marks an exercise in chasing the wind.”). “When … a concurrence that provides the fifth vote necessary to reach a majority does not provide a ‘common denominator’ for the judgment, the Marks rule does not help to resolve the ultimate question.” See United States v. Heron, 564 F.3d 879, 884 (7th Cir., 2009). Rather, “[w]hen it is not possible to discover a single standard that legitimately constitutes the narrowest ground for a decision on that issue, there is then no law of the land because no one standard commands the support of a majority of the Supreme Court.” See United States v. Alcan Aluminum Corp., 315 F.3d 179, 189 (2d Cir. N.Y. 2003); Anker Energy Corp. v. Consolidation Coal Co., 177 F.3d 161, 170 (3d Cir. 1999) (“[I]n cases where approaches differ, no particular standard is binding on an inferior court because none has received the support of a majority of the Supreme Court.”).

Here, it is not entirely clear whether there exists any common overlap between the analysis of the Majority and Justice Thomas. Specifically, the majority reasoned that the “saving clause [in § 2] permits agreements to arbitrate to be invalidated by ‘generally applicable contract defenses, such as fraud, duress, or unconscionability’” [Slip Opinion, at 5], but concluded that preemption must be found when doing so “stand[s] as an obstacle to the accomplishment of the FAA’s objectives.” See Slip Opinion, at 9.  Justice Thomas’ concurrence unequivocally rejected the majority’s “purposes-and-objectives preemption”, however, finding instead that the Discovery Bank rule was in direct conflict with § 2:
I write separately to explain how I would find that limit in the FAA’s text. As I would read it, the FAA requires that an agreement to arbitrate be enforced unless a party successfully challenges the formation of the arbitration agreement, such as by proving fraud or duress. 9 U. S. C. §§2, 4. Under this reading, I would reverse the Court of Appeals because a district court cannot follow both the FAA and the Discover Bank rule, which does not relate to defects in the making of an agreement.
This reading of the text, however, has not been fully developed by any party, cf. Brief for Petitioner 41, n. 12, and could benefit from briefing and argument in an appropriate case. Moreover, I think that the Court’s test will often lead to the same outcome as my textual interpretation and that, when possible, it is important in interpreting statutes to give lower courts guidance from a majority of the Court. See US Airways, Inc. v. Barnett, 535 U. S. 391, 411 (2002) (O’Connor, J., concurring). Therefore, although I adhere to my views on purposes-and-objectives pre-emption, see Wyeth v. Levine, 555 U. S. 555, ___ (2009) (opinion concurring in judgment), I reluctantly join the Court’s opinion.
See Slip Opinion (Concurrence), at 1-2.

Indeed, the language highlighted above indicates that Justice Thomas himself believed his test to be completely distinct than that of the majority, but that he "reluctantly" joined the majority based on his belief that the “outcomes” of both tests would sometimes overlap.  To the extent there is no common overlap in "standards," there would be no controlling rule of law (at least, that is the conclusion of the various Courts of Appeal above).  Accordingly, this issue would seem to be one needed to be resolved to even determine exactly what Concepcion means moving forward (aside from the preemption of the Discover Bank rule, of course).

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