The October 2010 issue of Alternatives to the High Cost of Litigation, the excellent newsletter of the International Institute for Conflict Prevention and Resolution (”CPR”), featured an article I wrote on the United States Supreme Court’s decision in Granite Rock Co. v. International Brotherhood of Teamsters, No. 08–1214 (June 24, 2010). The article is entitled “Despite Granite Rock’s Procedural Dodge, Court Issues A Straightforward Decision on Bargaining Agreements,” 28 Alternatives 175 (October 2010).
The article discusses Granite Rock in detail, and argues, among other things, that:
the Court deliberately dodged consideration of an important factor in the case — a signed contract that potentially could have answered the question — by reflexively applying a procedural rule that forced the court to put the fact aside, instead of remanding for proper consideration.
. . . .
The tradeoff the Court made when it elevated institutional concerns over deciding a case based on its undisputed facts was not a fair one. While the Court pointed out that consideration of the belatedly raised argument would have resulted in the Court ruling for the first time on an issue not considered by the Ninth Circuit, and perhaps not one fully briefed, that justification presupposes that consideration of the retroactive CBA would have required intensive analysis of a controversial issue.
But there was no real controversy here. The plain terms of a fully executed contract clearly and unambiguously contravened the key assumption on which the majority opinion rested: that there was a formation-date dispute.
28 Alternatives at 175 & 178.
The article is the second of a two-part series. The first part discussed and critically analyzed the Supreme Court’s decision in Rent-A-Center, West Inc. v. Jackson, No. 09-497 (June 21, 2010). That part was entitled “Rent-A-Center‘s Roadmap Extends Beyond Contracts. . . To Congress and the Supreme Court’s New Term,” 28 Alternatives 154 (September 2010) (blogged here).
Alternatives also recently published two other articles I wrote earlier this year, both of which were featured as cover stories: “Stolt-Nielsen Delivers a New FAA Rule — And then Federalizes the Law of Contracts,” 28 Alternatives 121 (June 2010), and “It’s Time for Doctrines: The Supreme Court Wrestles with ‘Severablility’ and the ‘Clear and Unmistakable Standard,” 28 Alternatives 73 (March 2010) (blogged here and here).
Alternatives is a subscription-only publication. Subscription information is available at this page, as well as at the publisher’s, John Wiley & Sons’s, website here.
I would like once again to take this opportunity to thank CPR, and Russ Bleemer, Editor of Alternatives, for their kind assistance and support in featuring my articles. CPR is one of the most prestigious ADR organizations in the United States, and, as I have said before, Russ is a very intelligent, dedicated and professional editor with whom it is a pleasure to work.
