Wednesday, November 28, 2007
In his dissent in the recent contracts case, Seawright v Amer. Gen. Fin. Serv., Inc., Judge Boyce F. Martin relied on a rather unusual authority in the lone footnote to the dissenting opinion. Rather than citing to Williston or Corbin or some other learned treatise or court, Judge Martin referenced a conversation between Homer Simpson (picture, left with pink donut . . . donut, mmmmrrrrrggggghhh (slobber)) and God (pictured left, without donut).
In the case, plaintiff Seawright claimed that she was discharged by her employer in violation of state anti-discrimination law and the Family and Medical Leave Act. Defendant sought to compel arbitration, citing an arbitration agreement to which it claimed Seawright had agreed. Seawright countered that she had never signed the agreement, but the majority found that she had "signaled her assent" to the arbitration agreement "through action," in this case by continuing her employment.
The dissent found "no proof that she manifested assent to the contract." And here is where the opinion becomes animated. "Without a signal that she understands that a contract is being made," Judge Martin queried, "how is one to know if she has truly accepted?" There follows a footnote:
Homer Simpson talking to God: "Here's the deal: you freeze everything as it is, and I won't ask for anything more. If that is OK, please give me absolutely no sign. [no response] OK, deal. In gratitude, I present you this offering of cookies and milk. If you want me to eat them for you, please give me no sign. [no response] Thy will be done." The Simpsons: And Maggie Makes Three (Fox television broadcast, Jan. 22, 1995).
Hat tip to my student, Alison Preest, for pointing out the case to me.