Perhaps the single greatest social hazard for a lawyer is the lurking threat of the anecdote.1 Imagine it, someone with whom you are sharing, say, a classic Old Fashioned,2 has discovered you are a lawyer. He decides to break the ice by regaling you with the story of that one time he was called for jury duty. The story is, I don’t know, maybe mildly interesting at best. So you drink your bitters and brandy and you listen because, hey, it’s this guy’s experience. But that’s all it is: a single – albeit real – experience of the legal system. For most people, you realize once again, that is all you are going to get. A single anecdote = American law.
I’ve been thinking about how these singular experiences shape our perspectives ever since the Supreme Court term ended a few weeks ago. Most of us only go to court a few times in our life – for jury duty, fighting a parking ticket, probating a will, or dealing with child custody or a divorce. Few of these cases are blockbusters. Even when they are our cases, they can be banal, boring – hell, they can be so achingly, numbingly, dull that even we want to forget them. However, it’s often just such run-of-the-mill cases that actually make the most impact.
And (not to downplay DOMA or any other high profile decision) I’m of the opinion that the same is true for the Supreme Court, too. Over the course of 2012-13 Term, the Court issued 73 opinions on the merits and issued 5 summary dispositions (helpful definitions can be found in this fancy footnote).3 Few of these cases will create any kind of media sensation now or in the future. Odds are, even most lawyers won’t know too much about them. But that doesn’t mean they won’t be incredibly important. In fact they will, each of these decisions will shape not only the law for years to come, but the anecdotes that tell the stories of our lives as well.
Other than family and friends, one of the institutions that most shapes our stories is the government. The SCOTUS’s unrecognized work defines this relationship in some fundamental ways. Take, for example, two of the criminal cases the Court resolved this term: Maryland v. King, No. 12-207; and Florida v. Jardines, No. 11-564. Both cases were 5-4 decisions (though with slightly different majorities) and dealt with the government’s ability to collect evidence or testimony over the objection of a suspect.
In King, the Court was faced with a statute which said that DNA must be collected from every person arrested in the state of Maryland. After he was arrested on assault charges King’s DNA was collected as normal. It was only after King’s DNA was compared to other outstanding cases that he was also implicated in an unsolved rape. Brought to trial on the rape charge, King and his lawyers challenged the use of the DNA. They argued it was unconstitutional that his DNA was collected simply because he was arrested. The Court disagreed, allowing the collection and upholding his conviction. It reasoned that DNA collection was no different from fingerprinting arrestees and that the invasion of privacy — here a cheek swab — was minimal.
The situation was a bit reversed in Jardines. There, police brought a drug-sniffing dog onto Jardines’s front porch where – surprise face – it alerted to the presence of drugs. The police wasted no time searching the house and confiscating the marijuana plants they discovered. Now the reversal: Jardines was convicted, the Supreme Court set him free. Relying in part on cases that pre-date the Revolution, the Court concluded that an individual’s home is a haven unique in the law. While police need not avert their eyes when they see wrongdoing, they are not allowed to enter a home, even its exterior, to suss out that same wrongdoing. A policeman, like anyone, can approach a home and make inquiries about what may be going on inside, but apparently bringing a trained police dog is a different animal altogether (see what I did there? I thought you might like that).
Thus, in one of those quirks of law, scraping the inside of an arrestee’s cheek with a cotton swab is totally permissible, but bringing a dog to sniff outside his door is not. Sure, there are legitimate reasons for this variance, but it sounds more than a little strange set beside each other like that. And the thing is this: agree or disagree with the Court’s decisions, the fact is that the Court has set boundaries for how the police may engage with us. It has put limits on our relationship with the government in a very real sense. Is this the most fair, most just, most respectful structure of our relationship?
Now, maybe you are not too concerned with police dogs and cotton swabs. The government might be one of the biggest characters in our stories, but maybe not the police. Big business, the economy, money, that’s where its at. So, let me give you two examples of this type.
First is American Express Co. v. Italian Colors Restaurant, No. 12-133. Here is a strange interaction between anti-trust law, class action law, and arbitration. The Italian Colors restaurant signed an agreement with American Express for credit card services. The agreement provided that any disputes would go to arbitration, not to court, and prohibited the arbitrators to hear what are usually referred to as a “class action.”4 A group of restaurants, including Italian Colors, began to think they were getting a bad deal. Not only that, they had some evidence that American Express and its subsidiaries were violating anti-trust laws. Proving the case would be very expensive, though, so expensive that pursuing the cases individually would be too much trouble. So, these restaurants decided to sue as a class and, when American Express pointed out they had agreed not to do that, claimed it would be fundamentally unfair to hold them to the agreement. The Supreme Court concluded that the agreement was binding; the restaurants were not able to litigate as a class, but needed to go through individual arbitration.
On the flip side, you have Oxford Health Plans LLC v. Sutter, No. 12-135. Sutter is a physician who had a dispute with Oxford Health Plans and filed a proposed class action case in court. As with Italian Colors, the parties had an arbitration agreement as part of their contract. Here, however, the arbitration agreement was silent on the issue of class arbitration and the arbitrator held that it was permitted. When Oxford Health complained, the Court would not second-guess the arbitrator. Coupled with Italian Colors, the lesson for business is clear — make it explicit and you can avoid class actions, either in court or in arbitration.
This might seem fair. After all, an agreement is an agreement. People ought to be held to the terms of their contracts. Yet, it isn’t just the various merchants and corporations of these cases that will be impacted. Almost everybody in the United States is party to an arbitration agreement, even if they don’t realize it. Credit cards, cell phones, internet and cable services, computer or video game software, bank accounts and loans — all of these and more are governed by various agreements. And most of these include arbitration requirements. After this decision, they will also be amended, I’m sure, to ban class actions.
What does it mean? Well, maybe you find out that your cable company has been overcharging you by a few bucks a month for that last year; maybe they have been overcharging everybody, in fact. Any individual trying to go after them will likely find the cost prohibitive. Now, the law makes it that much easier to prohibit class actions in these cases or to force arbitration — just include a clause in the official agreement. Did you actually agree to give up your right to go to court or to join together with a class who might all be injured? Technically (and legally, of course), you did. But was there actually an agreement? Is this a fair and just way to structure commercial or economic relationships?
The point here is not to critique the judgments of the Court. These are tough cases that present complex questions. Cliched answers can be tempting at times like this – they signed an agreement! He was arrested! A home is a castle! – but they dodge the complexity of the questions. An entrepreneur might have signed a contract, but should she be bound by its terms even as she challenges those terms as being unlawful? An arrestee’s DNA will undoubtedly be helpful, but is utility alone justification for taking it without consent? And a homeowner ought to be secure in his home, but does that security outweigh the need to investigate criminal activity?
So much of our interaction with the legal system is made up of these and other equally mundane questions. These encounters conform to legal rules overseen by our courts, especially the Supreme Court. Yet, most of us only know what the court does in the big cases. We see only the media-friendly decisions where the court steps into the landmine of the culture wars. Part of this is the result of decisions ladened with jargon and legal technicalities. But, let’s be honest, that doesn’t stop us when it is a topic close to our hearts.5
The struggle is over the fact that the big picture things are easier to get excited about. And rightly so. These questions define our culture in deep ways. But these other questions do too, The problem is that it is much more difficult to see how that works. Everyone, though, deals with contracts and the broader economy. All of us have some interaction with law enforcement, even if it is just getting a speeding ticket, being fingerprinted for a job application, or, yes, going for jury duty. That mildly interesting party chatter reflects that experience of real people. Our attention is often focused on the big picture, but we shouldn’t let that blind us to the important decisions that go on every day and that don’t make the front page of the New York Times or The Jesuit Post.
We can’t forget these boring cases, though. Routine interactions can seem like just the background noises of our society. Many of these questions seem boring, remote, or just fodder for idle chatter. They’re not though. It is these cases that really matter in the day-to-day. They structure real relationships and allocate rights and responsibilities over health care, families, businesses and consumers. They resolve disputes on a daily basis that impact just about everyone.
That doesn’t make it any easier to pay attention, though. Importance rarely equals exciting. What we can do, though, is ask what questions are in play, what values are at stake. We can ask what else is going on behind the scenes. The boring, seemingly useless situations we encounter every day can conceal deep meanings. And, if we care enough to focus on the big picture questions when they come up in the sexy, fascinating, and media-friendly cases, can we work up the energy to care when they show up in the boring ones, too?
Cover photo courtesy Flicker user William & Mary ACS
Supreme Court photo courtesy Flickr user Mark Fischer
Bar Exam photo courtesy Flickr user ambimb
Scotus photo courtesy Flickr user Niall McAuley
Main Street photo courtesy Flickr user Kjell Joran Hansen
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