Justice Scalia wrote some blockbuster decisions about arbitration, enforcing arbitration agreements regardless of their real-world impact, and making a potentially dry topic exciting and contentious. Readers of his opinions knew from the first few paragraphs of the analysis how the case was coming out. If he was bench-slapping a lower court for its interpretation of the FAA, Scalia liked to begin the analysis with this context: “The FAA was enacted in 1925 in response to widespread judicial hostility to arbitration agreements…” (E.g., Italian Colors,Concepcion, Compucredit, Buckeye Check Cashing). His arbitration opinions are the ones that the New York Times highlighted when it described what is wrong with arbitration jurisprudence. And they are the decisions that state courts most often balk at applying.
All of which means his decisions made their mark. Here are key arbitration decisions he authored for the majority, with quotes from those majority decisions.
- American Express Co. v. Italian Colors Restaurant (2013) (refusing to apply an “effective vindication” exception to enforcement of individual arbitration of low-dollar claims):
- The class-action waiver merely limits arbitration to the two contracting parties. It no more eliminates those parties’ right to pursue their statutory remedy than did federal law before its adoption of the class action for legal relief in 1938, see Fed. Rule Civ. Proc. 23, 28 U.S.C., p. 864 (1938 ed., Supp V); 7A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 1752, p. 18 (3d ed. 2005). Or, to put it differently, the individual suit that was considered adequate to assure “effective vindication” of a federal right before adoption of class-action procedures did not suddenly become “ineffective vindication” upon their adoption.
- Compucredit Corp. v. Greenwood (2012) (finding a federal statute — CROA — did not trump the FAA):
- It is the dissent’s interpretation that effectively reduces a portion of the CROA to a nullity. Interpreting the “right to sue” language in § 1679c(a) to “create” a right to sue in court not only renders it strikingly out of place in a section that is otherwise devoted to giving the consumer notice of rights created elsewhere; it also renders the creation of the “right to sue” elsewhere superfluous.
- AT&T Mobility v Concepcion (2011) (finding California’s case law declaring it unconscionable to waive class arbitration in the consumer context was preempted by the FAA):
- Arbitration is poorly suited to the higher stakes of class litigation. . . . We find it hard to believe that defendants would bet the company with no effective means of review, and even harder to believe that Congress would have intended to allow state courts to force such a decision.
- Rent-A-Center, West v. Jackson (2010) (finding that when parties delegate issues of substantive arbitrability to arbitrators, those delegations must be enforced unless the plaintiff specifically alleges the delegation text itself is unenforceable):
- To be sure this case differs from Prima Paint, Buckeye, and Preston, in that the arbitration provisions sought to be enforced in those cases were contained in contracts unrelated to arbitration—contracts for consulting services, check-cashing services, and “personal management” or “talent agent” services. In this case, the underlying contract is itself an arbitration agreement. But that makes no difference.FN3 Application of the severability rule does not depend on the substance of the remainder of the contract. Section 2 operates on the specific “written provision” to “settle by arbitration a controversy” that the party seeks to enforce. [internal citations omitted]
- Buckeye Check Cashing v. Cardegna (2006) (holding that arbitration clause in illegal contract must be enforced, because plaintiff did not allege the arbitration clause itself was invalid):
- It is true, as respondents assert, that the Prima Paint rule permits a court to enforce an arbitration agreement in a contract that the arbitrator later finds to be void. But it is equally true that respondents’ approach permits a court to deny effect to an arbitration provision in a contract that the court later finds to be perfectly enforceable. Prima Paint resolved this conundrum—and resolved it in favor of the separate enforceability of arbitration provisions.
[While most of his decisions were staunchly pro-enforcement of arbitration, on at least one occasion, Scalia’s majority opinion decided against arbitration. In Wright v . Universal Maritime Service Corp., 525 U.S. 70 (1998), the Court found that a longshoreman could sue his employer for ADA violations, despite an arbitration agreement in his union’s collective bargaining agreement, because that agreement did not clearly and unmistakably waive the federal rights.]
Even those of us who disagree with the result of some of these decisions have to acknowledge they are highly logical, clear, and surprisingly passionate. There is no doubt that Justice Scalia was critical to the development of the Court’s current arbitration jurisprudence.