AT&T v. Concepcion: The Problem of a False Majority

March 13, 2013

I’ve recently co-authored an article with Lisa Tripp on the U.S. Supreme Court’s decision in AT&T v. Concepcion. It’s currently available for download from SSRN. Here’s the abstract:

The Supreme Court’s 2011 decision in AT&T v. Concepcion is the first case where the Supreme Court explores the interplay between state law unconscionability doctrine and the vast preemptive power of the Federal Arbitration Act (FAA). Although it is considered by many to be a landmark decision which has the potential for greatly expanding the already impressive preemptive power of the FAA, something is amiss with Concepcion.

AT&T v. Concepcion is ostensibly a 5-4 majority decision with a concurring opinion. However, the differences in the majority and concurring opinions are so profound that it appears that Justice Thomas actually concurred in the judgment only, even though he joined the putative majority opinion. This raises serious philosophical questions about jurisprudence, what is necessary to create a rule of law in the American legal system, and the precedential value of Concepcion itself.

Justice Thomas joined the majority opinion and provided the fifth vote, but wrote a concurring opinion that explicitly rejected the legal reasoning of the majority opinion in its entirety. The putative majority opinion authored by Justice Scalia allows that unconscionability can be a valid defense to the enforcement of an agreement to arbitrate, but in Concepcion, allowing California to apply its unconscionability doctrine (the Discover Bank rule) would frustrate the purposes and objectives of Congress in enacting the FAA. For these reasons the Scalia opinion found the law was preempted.

Justice Thomas, in contrast, does not believe that unconscionability can ever be a basis to invalidate an agreement to arbitrate and he reaffirmed his emphatic position articulated in Wyeth v. Levine that “[t]his Court’s entire body of purposes and objectives preemption jurisprudence is inherently flawed. The cases improperly rely on legislative history, broad atextual notions of congressional purpose, and even congressional inaction in order to pre-empt state law.”

Justice Thomas’s conclusion that the law was preempted turned on the text of the statute which he interprets as not allowing unconscionability-based defenses to preemption. Justice Thomas has reaffirmed his rejection of purposes and objectives preemption in cases decided after Concepcion. This means, looking at the substance of the opinions, that there are but four votes for the deciding rationale articulated in the Scalia opinion and there is not a single common denominator that the Scalia and Thomas opinions share, except that they agree on the result.

The Concepcion Court is, in substance, equally divided. Four members found that California’s unconscionability doctrine frustrated the purposes and objectives of the FAA, four in the dissent thought the law did not frustrate the purposes and objectives of the FAA, and one found that the purposes and objectives of Congress were immaterial to the resolution of the case.

How should lower courts react to an equally divided court in this situation? Does a Justice’s decision to join an opinion create a governing rule of law under these unusual circumstances? Can governing rules of law be created in the absence of a majority for the deciding rationale? Is a Justice’s labeling of an opinion as a regular concurrence dispositive or does its substance dictate the precedential value it is given?

The authors’ argue that the Supreme Court provided the answer to these questions over 100 years ago in Hertz v. Woodman:

Under the precedents of this court, and, as seems justified by reason as well as by authority, an affirmance by an equally divided court is, as between the parties, a conclusive determination and adjudication of the matter adjudged; but the principles of law involved not having been agreed upon by a majority of the court sitting prevents the case from becoming an authority for the determination of other cases, either in this or in inferior courts.

Under any rational reading of the opinions, there can be no doubt that “the principles of law involved [have not] been agreed upon by a majority of the court sitting” and this should “prevent[] the case from becoming authority for the determination of other cases, either in [the Supreme Court] or in inferior courts.” Although Hertz dealt with a situation where the votes were literally split, its point that it takes a majority to create a governing rule is inescapable.

In looking at the substance of the Scalia and Thomas opinions, there simply are not five votes for any aspect of the controlling rationale articulated by Justice Scalia in his putative majority opinion. Because of this, Concepcion should viewed as having created no rule of law outside its specific facts and should, like two other Supreme Court cases that are similar to it, Branzburg v. Hayes and United States v. Verdugo-Urquidez, be treated as not having a majority opinion for precedential purposes.

9th Circuit Court of Appeals Finds Sea Shepherd May Have Engaged in Piracy

February 28, 2013

Well this is interesting and I’ve doubt we’ve heard the last of this case.

Japanese whalers brought an action against the Sea Shepherd Society and Paul Watson under the Alien Tort Statute for injunctive and declaratory relief. The Cetacean Institute and the other Plaintiff’s argued that Watson and the Sea Shepherd Society actions amounted to piracy and violated international agreements regulating conduct on the high seas.

The Federal District Court for the Western District of Washington denied the request for a preliminary injunction and dismissed the piracy claims. Now the 9th Circuit Court of Appeals in a scathing opinion has reversed the District Court’s decision.

Chief Judge Alex Kozinski writing for the majority starts his decision with what may be a trailer for an episode of Whale Wars.

You don’t need a peg leg or an eye patch. When you ram ships; hurl glass containers of acid; drag metal-reinforced ropes in the water to damage propellers and rudders; launch smoke bombs and flares with hooks; and point high-powered lasers at other ships, you are, without a doubt, a pirate, no matter how high-minded you believe your purpose to be.

Kozinski then goes on a search for a definition of piracy and he turns first to the United Nations Convention on the Law of the Sea and the High Seas Convention “which provide almost identical definitions.” Citing UNCLOS Article 101 the opinion defines piracy as “illegal acts of violenceor detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship . . . and directed . . . on the high seas, against another ship . . . or against persons or property on board such ship.”

Turning to the District Court’s opinion, Kozinski finds it relied on an erroneous interpretation of the term “private ends.” The District Court concluded “private ends” meant actions that led to “financial enrichment.” Furthermore, they found that “absent an international consensus that preventing the slaughter of marine life is a “private end,” the court cannot say that there is a specific, obligatory, and universal international norm against violence in the pursuit of the protection of marine life.” Kozinski concludes that this interpretation is flawed. Private ends, he concludes often refers to matters of a personal nature that are not necessarily related to finance. Further, he finds a ” rich history of piracy law, which defines acts taken for private ends as those not taken on behalf of a state.” The Court concludes that because someone believes their actions serve the public good is not enough to render their ends public.

Kozinski was equally harsh on the District Court’s interpretation of violence. The District Court found that Sea Shepherd does not target people, only ships and therefore “it is not apparent that the nations of the world would agree that tactics that resemble malicious mischief amount to piratical violence.” This Kozinski found “runs afoul of the UNCLOS itself, which prohibits “violence . . . against another ship” and “violence . . . against persons or property.”” The activities alleged by Cetacean are violent acts for private ends and thus the District Court erred when dismissing the piracy claims.

The opinion also concluded that there was evidence that the Sea Shepherd was engaged in acts prohibited by Suppression of Unlawful Acts Against the Safety of Maritime Navigation Convention and the Convention on the International Regulations for Preventing Collisions at Sea. Therefore a preliminary injunction was proper in this case.

Finally, Kozinski takes a few parting shots at District Judge Richard A. Jones.

The district judge’s numerous, serious and obvious errors identified in our opinion raise doubts as to whether he will be perceived as impartial in presiding over this high-profile case. The appearance of justice would be served if the case were transferred to another district judge, drawn at random, and we so order in accordance with the standing orders of the Western District of Washington.

Ouch! Judge Jones was appointed to the bench by George W. Bush.

As legal watchers know there’s been talk that the ATS is not long for this world with Kiobel v. Royal Dutch Petroleum Company before the Supreme Court. However, even a sharply curtailed ATS would still cover the type of piracy claims at issue in this case.

The opinion can be read here:

Lozman v. City of Riviera Beach, Florida

October 1, 2012

I know I haven’t really be keeping up the blog but I thought this case deserved note. The question at issue is whether a floating home indefinitely moored should be considered a vessel and thus subject to federal maritime rules. I’ll try and make a more in depth post later but after reading the briefs I come down firmly on the side of the respondents.

The ABA’s Supreme Court Preview has kindly made the briefs available.

Update: The Strange Legal World of Aubree Guancione

September 23, 2011

As I said I’ve been away from the blog for sometime. While I was gone I received this comment about the Aburee Guancione case, rather that let it languish in the comments section I decided to repost it in full here.

From A more informed person:

Clearly Evan R. Hanson, the author of this posting did not bother to find out the facts. the facts were William Stewart had his identity stolen, and a debt collection attorney made a series of false and fraudulent allegations, such as that a company named Larkspur, that had been licensed in San Jose for 13 years, and had had a fictitious name statement filing with Santa Clara County for the previous 14 years, though the credit union attorney made falsehook claims that Larkspur did not exist, in order to get the San Mateo and San Jose PD to each do a joint home invasion without warrant and perpetrate an assault and battery on an elderly handicapped widow who was one week out of knee surgery thereby permanently injuring her knee. These facts: that the company Larkspur did exist and had existed for 14 years as a licensed company, that the criminal charges against Stewart were dismissed 5 weeks after the home invasion by the police without warrant, the fact that Mr. Stewart’s identity was stolen and used without his knowledge, the fact that the Veteran’s Administration had several computers stolen that contained the personally identifiable information of 25000 veterans, including Mr. Stewart. Mr. Stewart was a member of the class action law suit for identity theft against the VA, which was found for the veterans. the claims of the credit union attorney and an incompetent San Mateo PD detective, who was a former K-9 officer, were baseless and dismissed 5 weeks after the home invasion without warrant. We believe that the above disinformation was submitted by a cop, who was angry that they could not make a case against Stewart, and because the cop doing the investigation was plain wrong, and should have known it had he not been so lazy as to not simply do the research on Larkspur. As soon as the San Mateo judge heard about the story, he dismissed the case, at the request of the San Mateo DA in the interests of Justice. Clearly Evan Hanson does not know what justice is, or slander. Mr. Stewart is a fine individual who has served his country well as a US Army Captain, assigned to the Pentagon, in the position of a Lieutenant Colonel. What is funny is that the date of the article above is within two days of the two year anniversary of the home invasion without 4 th amendment judge signed warrant. Apparently the cops felt emboldened to publish this slander at the two year mark, presumeably thinking that the statute had run against malicious prosecution.

Spain Scores Win Against Odyssey Marine In 11th Circuit

September 23, 2011

Spain won a victory in their ongoing litigation with Odyssey Marine Exploration over the wreck known as the “Black Swan.” Spain claims the ship is Nuestra Senora de las Mercedes and is a Spanish Navy frigate, a vessel lost in 1804.

Odyssey Marine discovered the remains of the ship in 2007, and filed an admiralty complaint in rem against the vessel and its cargo in the Middle District of Florida and sought a warrant of arrest. Spain, Peru, and twenty-five individuals filed claims against the res. Spain filed a motion to dismiss based on theory that as a Spanish warship the res was immune from arrest under the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. §§ 1602-1611. The district court granted Spain’s motion to dismiss and the 11th Circuit affirmed.

The 11th Circuit in its 53 page opinion, upheld the district court’s conclusion that the res was the Mercedes, that FSIA applies to the Mercedes, and that the cargo of a military ship is similarly immune from arrest. It’s this last point that I found really interesting. It seems no party cited any case or statute that directly addressed whether cargo on a sunken military vessel is entitled to the same sovereign immunity that the sunken vessel. The 11th Circuit in concluding that the cargo was entitled to the same immunity looked at other shipwreck acts, including the Sunken Military Craft Act and the Abandoned Shipwreck Act, as well as the Supreme Court’s decision in Republic of the Philippines v. Pimentel, 553 U.S. 851, (2008). Athough the court found Pimentel was factually distinguishable from the Odyssey Marine case, they found its reasoning instructive.

The same “promotion of the comity interest” that led the Supreme Court to dismiss the action in Pimentel compels this Court to treat the cargo and the Mercedes as one for sovereign immunity purposes. There is an undeniable potential for injury to Spain’s interest if we separated the Mercedes from its cargo and upheld an arrest of the cargo found and salvaged from a warship that is entitled to immunity.

You can read the full opinion here.

Back On Board

September 23, 2011

After a long hiatus the Admiralty & Maritime Law Blog is back. I wish I had a better excuse for being away for almost a year but I simply got too busy to maintain the blog. So starting today I’m going to try and return to regular posting although I am working on a piece on Concepcion that threatens to monopolize my time.

Chandlers Freed

November 15, 2010

Paul and Rachel Chandler were freed this weekend after a ransom was paid to to the pirates that had taken them off their yacht in October of last year. The ransom was raised in part by members of the Somali diaspora.

The BBC has more.

USNS Saturn Sunk!

October 28, 2010

How’s that for a headline? Fortunately, the USNS Saturn (T-AFS 100) was sunk by the George H. W. Bush Carrier Strike Group as part of a real-world tactical training exercise. The Commander of Destroyer Squadron 22, Capt. Jeffrey Wolstenholme, said that “everyone in the strike group is very excited to have the opportunity to conduct this exercise because it is rare to be involved in this. You have an actual life-size ship out there that you can attack with aircraft coming in, ships driving in close proximity and ships launching missiles from long-range getting targeting information from aircraft. It’s really hard to replicate this without a hull to shoot at.”

The USNS Saturn began life as the RFA Stromness (A344). As the Stromness, she saw service during the Falklands War, where she carried over 400 troops of Royal Marines to the beach landing in San Carlos Water.

U.S. Navy Press Release

Navy Picks First 4 Subs For Gender Integration

October 26, 2010

Women will join the crews of the ballistic-missile submarines Wyoming and Maine, and the guided-missile submarines Georgia and Ohio beginning December 2011 after completing training, which consists of nuclear power school, prototype training and the Submarine Officer Basic Course, according to the service’s news release. The blue and gold crews of these subs each will get two female junior officers as well as a female supply lieutenant, who will serve as a professional and personal role model.

From the Navy Times

Katrina Litigation Continues: The Limitation of Liability Act and Summary Judgment

October 26, 2010

Five years after the disaster in New Orleans litigation continues to wind its way through the courts. The case, In re the Complaint of Great Lakes Dredge & Dock Co., LLC, out of the 5th Circuit addresses the claims in two separate class actions suits alleging that the United States and private companies that performed maintenance dredging in the Mississippi River Gulf Outlet (MRGO) caused severe damage to the Louisiana wetlands which amplified the damage done by the hurricane.

The class actions were filed in the Eastern District of Louisiana. As to be expected the defendants filed motions for summary judgment. But before the court ruled on the MSJ several defendants sought exoneration and/or limitation of liability under the Limitation of Liability Act. The district court dismissed the claims against the government for lack of subject matter jurisdiction due in part to the fact that the plaintiffs failed to file a timely administrative claim prior to filing suit against the government, as required by the Admiralty Extension Act. 46 U.S.C. § 30101(c). The claims against the contractors were dismissed under the government contractor immunity doctrine. The Plaintiffs then filed claims against the dredgers in the limitation action.

The many of the claims in the limitation action were substantially similar to those brought in the earlier class action but the Plaintiffs also added a claim of negligence arguing that the Limitation Petitioners “failed to perform their dredging work with due care” and that they “performed their dredging work in the MRGO negligently.” The Limitation Petitioners moved to dismiss under Rule 12(b)(1) and Rule 12(c). The district court then granted the motion, holding that the Limitation Petitioners did not owe a duty to the Plaintiffs, and were therefore not liable, because the Claimants’ hurricane damages were not the legally foreseeable consequence of the Limitation Petitioners’ allegedly negligent dredging activities.

The Plaintiffs appealed arguing that dismissal with prejudice under 12(b)(1) was improper because the District Court had jurisdiction under 28 U.S.C. § 1333. Alternatively they argued that if there was no jurisdiction under 12(b)(1) then the Court’s dismissal under 12(c) was improper. The Court of Appeals however is having none of this argument. Instead they explain that the opinion taken as a whole demonstrates that the court was not dismissing the claims on jurisdictional grounds but rather was based on the merits of the Plaintiffs’ pleadings. After a de novo review of the District Courts decision the Court of Appeals affirmed the dismissal.

As much as it’s clear that the destruction of the wetlands has put Louisiana and as much as I empathize with those who lost everything in Katrina, I have to say I’m dubious of the legal strategy of going after the dredgers. That being said I think they had a much better argument when they focused on the negligence issue than when they attacked the dredging policy as a whole.


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