April 18, 2013
Kent E. Thomson and Nicholas Van Exan (Davies Ward Phillips & Vineberg LLP) have posted a working paper entitled: “Unpacking Pandora’s Box: Consumer Arbitration Law after Seidel”. The abstract reads:
Until a few years ago, scholars and practitioners shared in the view that Canada was an “arbitration-friendly” jurisdiction. Canadian courts, and in particular the Supreme Court of Canada, earned this reputation through a series of important decisions in which arbitration clauses were enforced in the consumer protection law context. These decisions reflected an emerging consensus among jurists that arbitration was a system of equal importance and legitimacy to the judicial system policed by the courts. Or so it appeared.
In 2011, the Supreme Court of Canada released its decision in Seidel v. Telus Communications Inc., in which a narrow majority of the Court held that an arbitration clause contained in a standard consumer contract was void in respect of certain provisions of the British Columbia Business Practices and Consumer Protection Act. Superficially, Seidel signaled a small but innocuous change to the Supreme Court’s approach to adjudicating statutory rights. The implications of the Court’s decision, however, are potentially far-reaching. In Seidel, the Supreme Court re-ignited a longstanding debate over the legitimacy of arbitration as a means of resolving consumer-related disputes.
This paper explores the law of consumer arbitration both before and after the Supreme Court of Canada’s landmark decision in Seidel. The authors find that Seidel re-opened what appeared in Canada to be a firmly closed Pandora’s Box. Whereas before Seidel courts would not interfere with arbitration agreements absent clear and express legislative language to the contrary, today no such certainty prevails. Contrary to the direction recently taken by U.S. courts, Seidel permits Canadian courts to rule against the arbitration of consumer claims on the basis of implied legislative intent and even at the expense of the arbitrator’s jurisdiction. The resulting uncertainty created by this approach means that counsel should, now more than ever, draft arbitration agreements with a view to their eventual litigation.
Download a pdf copy of the paper via SSRN here.
April 17, 2013
The U.S. Supreme Court today released a significant decision on personal jurisdiction in Kiobel v. Royal Dutch Petroleum Co. (No. 10–1491, slip opinion: link). (backgrounder here and here).
The Court unanimously denied the appeal. Read the rest of this entry »
April 16, 2013
Alexander Tsesis (Loyola University Chicago School of Law) has posted ”Inflammatory Speech: Offense versus Incitement”, Minnesota Law Review, Vol. 97, 2013/Loyola University Chicago School of Law Research Paper No. 2013-006. Here’s the abstract:
The commonly accepted notion that content regulations on speech violate the First Amendment is misleading. In three recent cases – Snyder v. Phelps, Brown v. Entertainment Merchants Ass’n, and United States v. Stevens – the Court made clear that free speech includes the right to express scurrilous, disgusting, and disagreeable ideas. A different set of cases, however, concluded that group defamation, intentional threats, and material support for terrorist organizations are not protected forms of expression. This Article seeks to make sense of this doctrinal dichotomy and to develop clearer guidelines for regulating incitements that are posted on the Internet and in public areas.
Many leading First Amendment scholars regard the Supreme Court’s jurisprudence on outrageous and inciting expressions to be inconsistent. These academic authors often adopt a libertarian theory of the Free Speech Clause. They generally agree with cases that strike limits on offensive statements but disregard, or outright ignore, those that uphold restrictions on threats and defamations made in the absence of any imminent threat of harm. This Article demonstrates that opponents of incitement regulations fail to differentiate policies that protect public safety from those that silence outrageous but benign expressions.
I propose a relatively straightforward method for evaluating the constitutionality of incitement laws. The mens rea of a speaker is key to judicial determinations about whether true threats, group defamation, and material support for terrorists are actionable or constitutionally protected. This Article parses the Court’s analysis of unprotected incitement that poses a threat to public safety. A small but significant group of decisions belies the libertarian claim that incitement is constitutionally protected. My proposal will undoubtedly be controversial because the method I propose would augment juries’ and judges’ authority to assess the context within which threatening statements are made and qualify the relevance of the canonic imminent threat of harm doctrine.
Download a pdf copy of the article via SSRN here.