Revisiting the Contracts Scholarship of Stewart Macaulay, Post IV: Deborah Post

This is the fourth in a series of posts in our online symposium on the Contracts Scholarship of Stewart Macaulay.  More about the online symposium can be found here.  More information about this week's guest bloggers can be found here. 

Deborah Post is Associate Dean for Academic Affairs and Faculty Development and Professor of Law at Touro College Jacob D. Fuchsberg Law Center. 

One Contracts Professor’s Preference for State Court Decisions

In the essay that I contributed to Revisiting the Scholarship of Stewart Macaulay: On the Empirical and the Lyrical, I gave vent to the frustration I experienced over the years reading decisions written by the 7^th Circuit Judges Richard Posner and Frank Easterbrook. Stewart wrote to me recently and in two sentences, appropriately lyrical, summed up the source of my frustration:  “In theory, of course, the court applies state law in a diversity situation.  About the one thing that you can expect is that Judges Posner and Easterbrook will be off on a frolic of their own.”

I have a healthy respect these days, and a strong preference for, the decisions of state courts. I try to use the best of these to teach contract law to my students.  I admire the tenacity of state courts that insist, for example, that the commentary to the UCC matters in interpreting that statute.  See e.g. Simcala Inc. v. American Coal Trade, Inc. 821 So.2d 197 (Ala. 2001) (the word “center” in comment 3 to UCC section 2-306 means something when used to describe the way a stated estimate limits the “intended elasticity” of an output or requirements contract). 

I am particularly gratified by the persistence of courts that have used the unconscionability doctrine to invalidate boilerplate arbitration clauses.  Implicit in these cases is a duality. Oppression exists on two levels.  The terms of the transactions are oppressive and unconscionable, and the terms of the arbitration agreement are oppressive. Two cases I discussed previously at the 8^th Annual International Contracts Conference at Texas A & M University Law School.

In Brewer v. Missouri Title Loans, 364 S.W.3d 486 (Mo. 2012), the Missouri Supreme Court describes the terms of a loan agreement. Ms. Brewer borrowed $2,215 and paid back $2000, at which point she had reduced the principal balance on the loan by $.06.  The interest rate on that loan was 300%.  Ms. Brewer brought suit under the Missouri consumer protection statute, the Missouri Merchandising Practices Statute.

In Tillman v. Commercial Credit Loans Inc., 655 S.E.2d 362 (N.C. 2008), Ms. Tillman and Ms. Richardson, the named plaintiffs in a class action, purchased single premium credit insurance from a lender.  Within a year the North Carolina legislature made this species of loan illegal, but the statute was not retroactive.  Ms. Tillman and Ms. Richardson sued under the North Carolina Unfair and Deceptive Trade Practices Act.  The North Carolina Supreme Court found the arbitration clause in the contract, which barred class actions, unconscionable in a 3-2-2 decision.

When the United States Supreme Court vacated the decision in the Brewer case and remanded it to the Missouri court for reconsideration in light of A.T.& T. Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011), Chief Justice Richard Teitelman, responded that the unconscionability doctrine in Missouri law was not an “obstacle to the accomplishment of the act’s objectives.”  The arbitration agreement was unconscionable because there was expert testimony that no consumer would pursue a claim against the Title Company.  The cost was too high.  The Tillman court made much the same point.  Of the 68,000 loans that Citifinancial made in North Carolina, no borrower ever pursued arbitration of a claim.  Citifinancial on the other hand, had reserved its right to go to court and had exercised that privilege over 3,000 times in civil suits and foreclosure actions.  The Tillman court also provided information about the actual cost of arbitration, a factual discussion that is missing in a lot of these cases.  It turns out that arbitration is cost prohibitive for most low income consumers. 

Exploitive or predatory contracts saturate the market for credit, housing, furniture for the least well off in our society.  The Montana Supreme Court recently held a payday loan and its arbitration provision unconscionable.  Kelker v. Geneva-Roth Ventures, Inc., 303 P.3d 777 ( Mont. 2013)(780% APR was violation of Montana Consumer Loan Act). If the U.S. Supreme Court grants certiorari in Kelker, the decision in that payday loan case will probably meet the fate of its progenitors, Casarotto v. Lombardi, 886 P.2d 931 (Mont. 1994)(Casarotto I) and Casarotto v. Lombardi, 901 P.2d 596 (Mont. 1995)(Casarotto II). Justice Trieweiler maintained in Casarotto I that the Federal Arbitration Act had not pre-empted state laws addressing arbitration because the federal statute had not addressed every aspect or possibility with respect to arbitration agreements. In Casarotto II he argued that the U.S. Supreme Court’s decision to strike down an Alabama statute that made pre-dispute arbitration agreements unenforceable was irrelevant to the decision in Casarotto I.  He was reversed in an opinion written by none other than Justice Ginsberg. 

Justice Terry N. Trieweiler, the twice rebuked but unrepentant Montana Supreme Court jurist, actually wrote three Casarotto opinions.  He penned a special concurring opinion in Casarotto I to address “those federal judges who consider forced arbitration as the panacea for their “heavy caseloads” and to single out for criticism Judge Bruce M. Selya, First Circuit Court of Appeals, who called the prevalence in state courts of “traditional notions of fairness” an “anachronism.”  886 P.2d at 940. Justice Trieweiler’s  rejoinder was that some federal judges are arrogant. I think of it as hubris.

The number of cases challenging arbitration agreements has not diminished over time.  I can think of at least two reasons for this phenomenon. One is ever expanding disparity in wealth and power in the United States in this post-industrial society.  There are very few ways individuals can challenge those who have power over them or expose what they feel to be an injustice that has been done to them.  We are conditioned to believe that there is “equal justice under the law” and to believe that a citizen may seek redress in court.  The second reason is the failure of federal courts to recognize that the FAA is indefensible when it is applied in consumer cases. That was the subject of the last series of blog posts discussing Margaret Radin’s book, Boilerplate.   The FAA is a statute frozen in time, applied to transactions almost ninety years after Congress held those hearings on the resistance of state courts to arbitration and used to enforce arbitration “agreements” in contracts that were not even dreamed of when the FAA was passed -- online, clickwrap contracts such as the contract in Kelker.  Contract defenses that police agreements where there is no real consent and no real bargaining are rendered impotent by the FAA.  It does not matter if Certiorari is denied in Kelker, because the 9^th Circuit has already used a pre-emption argument to defeat the Montana court’s use of “reasonable expectations” and unconscionability doctrines to invalidate arbitration provisions. Mortensen v. Bresnen Communications, LLC,  2013 U.S. App. Lexis 14211.

This past weekend I had the pleasure of meeting the judge who wrote the plurality opinion in the Tillman case, Justice Patricia Timmons-Goodson (pictured), who retired from the North Carolina Supreme Court in December 2012.   I did not plan this meeting.  It was completely serendipitous.  I was looking for the meeting room where the Task Force on the Future of Legal Education was discussing the end of law school as we know it.  I asked her for directions, and then I glanced at her name tag. It took me a moment to realize who she was.  I was told by Judge James Wynn, who is now on the 4^th Circuit U.S. Court of Appeals, but who once served with Judge Timmons-Goodson on the North Carolina Court of Appeals and the Supreme Court, that she was a recent recipient of the Legend in the Law award at Charlotte School of Law.

I knew that Justice Timmons-Goodson was a black woman. I looked for background information when I decided to write about the case. I knew, courtesy of North Carolina’s Lawyers Weekly, that two lawyers from Raleigh, John Alan Jones and G. Christopher Olson, obtained a judgment in Tillman and two companion cases in the amount of $81.25 million.  Of the borrowers represented in the Tillman case, 759 received approximately $31,291 each.  Another 9,670 received $544 each.

Taking the admonition of Stewart Macaulay seriously, striving to do something that looks like empirical research, I asked Justice Timmons-Goodson if she would consent to an interview. She hasn’t agreed yet, but I hope she will. I would like to know more about the process that she used to reach a decision in the Tillman case; how she persuaded enough of her colleagues to agree that the contract and the arbitration clause were unconscionable, even if two of them relied on a “totality of the circumstances” analysis that they thought sufficiently different from her opinion to merit a separate concurring opinion. Two justices signed her opinion relying on substantive unconscionability; two joined in finding the arbitration clause unconscionable but stressed the importance of deference to the fact-finding of the trial judge under a “totality of the circumstances” approach, and two justices dissented.

The Justice writing the dissenting opinion, appears to believe that the unconscionabiity doctrine is somehow illegitimate.   He noted that it had never been used in North Carolina to invalidate a contract or a term in a contract. If I do interview Justice Timmons-Goodman, I will ask her about her reaction to the most recent U. S. Supreme Court decisions. She has herself written about the importance of state court judges at every level, particularly in the trial courts. 

I am not sure that she would call her own acts as a justice on the Supreme Court “resistance.”  She might simply say that logic and adherence to an ethic of principled decision-making impelled her to write the decision in Tillman as she did. I cannot be sure that she believes, as I do, that the drafters of the FAA never intended to completely pre-empt state law, especially those contract doctrines that are designed to control avarice and unscrupulous behavior.  I do think, however, she will enjoy discussing the decisions of Justice Trieweiler.  

[Posted, on Deborah Post's behalf, by JT]