(The Return of) Ignatz, by Sam Heldman

Wednesday, October 02, 2002

Supreme Court

The Term hasn't even officially started (not til next Monday) and already the Supreme Court aspect of my blog has been made practically irrelevant by the unveiling of Thomas Goldstein's Supreme Court blog (link courtesy of Howard Bashman). As I saw first-hand at a seminar a few weeks ago, Goldstein has not only the prettiest small-law-firm website around, but also a scary level of detailed knowledge about the Supreme Court's docket.

Nonetheless for my own amusement if nothing else, I soldier on with semi-informed predictions for the upcoming Term's argued cases. To recap and to finish off the cases for next week:

Monday Oct. 7: Yellow Transp. v. Michigan, the boring case about truckers' fees discussed here, will be REVERSED. And Ford Motor Co. v. McCauley, the case about valuing injunctive relief for amount-in-controversy purposes in a diversity-jurisdiction inquiry, discussed here, will also be REVERSED.

Tuesday Oct. 8: FCC v. Nextwave, the case about the bankruptcy of a successful bidder for a spectrum license, will be AFFIRMED. Barnhart v. Peabody Coal, about coal miners' benefits and the Social Security Administration, will be REVERSED. Both cases are discussed here.

Wednesday Oct. 9: Eldred v. Ashcroft, aka Lessig v. Disney, will be AFFIRMED as discussed here. And finally for this week, Howsam v. Dean Witter is a case about arbitration. There is an arbitration agreement between the parties – i.e., an agreement by which they will arbitrate, rather than litigate, certain disputes. But Dean Witter doesn't want to arbitrate a claim because, it says, the claim is too old. (It doesn't want to litigate the claim in court either; it wants the claim to go away). The question is whether Dean Witter has to arbitrate anyway, and present its "too old" argument to the arbitrator; or whether Dean Witter can get a court to rule that it doesn't have to arbitrate. The Tenth Circuit said (in this opinion) that the question was for the court; in other words, it agreed with Dean Witter. But two things convince me that the Supreme Court will reverse: (1) the Court loves arbitration. Loves, loves, loves it. (2) The rule in labor arbitration, thanks to a Supreme Court decision almost 30 years ago, is that "timeliness is for the arbitrator", and there's no reason why the rule should be different in other arbitration contexts. It's conceivable that (after reiterating these big pro-arbitration themes) they'll affirm based on a reading of the precise particular language of this arbitration agreement and this timeliness provision; but more likely is that they'll go with these major themes above, and therefore REVERSE.

posted by sam 10:44 AM 0 comments


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