Consumer Arbitration and the Chief

The New York Times just ran an excellent three part series on arbitration clauses in consumer contracts, correctly pointing out that they have become increasingly common due to recent decisions by the U.S. Supreme Court.  Along the way, however the Times implies that Chief Justice Roberts may have played an unfair part in the process.  The criticism is off base.

The Times points out that Roberts, as a lawyer in private practice representing Discover Bank, was one of the "players behind the scenes" in a decades long effort to block class actions through the use of arbitration clauses.  The proof is that Roberts had once "unsuccessfully petitioned the Supreme Court" to hear a case raising the issue.  

Many years later, in 2010, SCOTUS decided AT&T v. Concepcion, in which, according to the Times, the court -- with the Chief in the majority -- accepted "essentially the same argument Mr. Roberts had made as a lawyer in the Discover case."

To which I say:  So what?

There is certainly nothing wrong, or even questionable, about a judge or justice participating in a case that raises a legal issue similar (or even identical) to one he or she litigated in practice.  Otherwise, every former specialist -- think patents, death penalty, insurance, you name it -- would face a constant stream of recusals.

Roberts's previous involvement in the issue may strike lawyers as interesting, but the take-away for non-lawyers may well be different.  One friend of mine called it shady.  It isn't and it wasn't.

I am no fan of the Supreme Court's arbitration decisions, including AT&T v. Concepcion. I think they were wrongly decided, with consequences that have led to grave injustices -- just as the Times describes.  But the implicit criticism of Chief Justice Roberts is unfair and uncalled for.

Comments

[Adam]

Bias, bias, bias. The NYT does not write stories about liberals, unions or how the problem with Hillary Clinton is not Benghazi but that her use of a private email server and her decision to hide that fact and the Obama Administration's decision to treat her differently than Sandy Berger and John Deutsch drives a stake thru the heart of FOIA and openness as a principle of how government should be run.

[Klutz]

Adam - That is a very long sentence. The NYT does write articles about liberals. They write articles about Benghazi. Just not every article, as some of the more biased media on the right do.

[anion]

Klutz
I don't agree with Adam's overstatement and overgeneralization. You are correct in easily refuting the "never writes about" part of it.

Then, however, you go on to make the same mistake. Worse reallyh. "every article"???? Really?

Whose bias is showing there?

Just like every political "Discussion" these days. Hyper ventilating zealots accusing each other of the same faults.

[Enrique Guerra Pujol]

I disagree ... Roberts should have recused himself to avoid even the appearance of impropriety

[anon]

And Kagan with respect to the ACA?

[Enrique Guerra-Pujol]

Sure, why not? After all, Kagan was Solicitor General when the ACA was enacted into law, so in theory (and probably in practice too) she represented the government when the law was challenged in NFIB v Sebelius ... Again, if lawyers are held to an "appearance of impropriety" standard, then why should we expect any less of our federal judges?