Reviews: The Second Founding By Historian Eric Foner
Your Blogger Has Reviewed Professor Eric Foner's Book, The Second Founding: How The Civil War And Reconstruction Remade The Constitution, in California Litigation.
I've reviewed Eric Foners' book, The Second Founding. The book is about the legislative and political history of the 13th, 14th, and 15th Amendments, and the post-Civil War Supreme Court's judicial interpretation and evisceration of the Amendments. The review appears in California Litigation, the journal of the California Lawyers Association, Vol. 33, No. 1, p. 52 (2020). With the permission of the California Lawyers Association and its publication California Litigation, I am republishing the article and making it available by clicking here.
International Arbitration: California Supreme Court Allows Service Of Process By FedEx On Chinese Company Where Parties Waived Formal Service Requirements Of Hague Service Convention
The Hague Service Convention Between The US And China Did Not Apply Because . . .
The first sentence of an opinion is often an arrow pointing to where the court is headed. So it is in Rockefeller Technology Investments (Asia) VII v. Changzhou Sinotype Technology Co., Ltd., S249923 (Cal. S.Ct 4/2/20) (Corrigan, J.): “The parties here, sophisticated business entities, entered into a contract wherein they agreed to submit to the jurisdiction of California courts and to resolve disputes between them through California arbitration.” When a court tells us that sophisticated parties entered into a contract, it’s usually a pretty good hint that the court will follow the contract.
The issue here was whether the contract provided for a means of service on a company in China that was preempted by the requirements of the Hague Service Convention. The Convention provides for a Central Authority to serve in the receiving country, and in fact at the time the Convention was adopted, China objected to service by alternative postal means. Here, however, the contract (a Memorandum of Understanding or MOU) provided for notice and service by FedEx and email, jurisdiction in California, and a JAMS arbitration provision.
Rockefeller Technology initiated arbitration by FedEx and email, and Changzhou Sinotype defaulted.The award was subsequently confirmed by a judge, Changzhou Sinotype moved, unsuccessfully, to set aside the default, the Court of Appeal reversed, and the Supreme Court reversed the Court of Appeal.
The Supreme Court analyzes whether service of process in the technical sense is required, and explains that the answer depends on the law of the state where the action is brought. Therefore, if formal service is required by California, then the Convention applies.
California, however, permits the parties to waive formal service in favor of an alternative form of service. That’s what the parties did here. Therefore, the Convention does not apply, and service was effective under California law. “Holding that the Convention does not apply when parties have agreed to waive formal service of process in favor of a specified type of notification serves to promote certainty and give effect to the parties’ express intentions.”
I’m Mediating Via Videoconference During The Coronavirus Crisis
Mediating While Social Distancing — I Am Doing It By Videoconferencing.
During this difficult public health emergency, we have watched as courthouses have limited intake of cases to emergencies, and lawyers have turned to telecommuting. However, efforts to resolve cases through mediation have continued. I mediate state and federal cases, and I have mediated cases with videoconferencing platforms. The most widely used platform with which many are familiar is Zoom. RingCentralMeetings, which is powered by Zoom, can also be used easily by anyone familiar with Zoom.
Videoconference mediations can be done efficiently, without traveling by the attorneys, clients, or insurance company representatives. Costs and time are less than with in-person meetings. The technology is flexible, allowing for joint sessions, separate caucuses, screen sharing, chat, and document exchange. Videoconference, like a phone call, can be initiated early during a lawsuit, and it is easy to schedule follow-up sessions. It can be lower-keyed than an in-person confrontation, helping some parties to focus on interests, rather than emotions.
A number of persons have expressed concern about the security features of Zoom, because they have read about the phenomenon of Zoombombing, where unwanted participants intrude into a Zoom meeting. Zoom has responded to security concerns by enabling the use of passwords and a virtual "Waiting Room" that persons must enter before the meeting host allows them to participate in a meeting.
While the coronavirus crisis has made videoconferencing a viable alternative to a physical meeting, it seems likely that after the current crisis fades, videoconferencing will become more popular as a means to conduct a mediation.
If you have questions about mediating by videoconference or setting up a mediation with me, feel free to contact me at:
(work email): malexander@alvaradosmith.com phone: 714.852.6836.
Take care and stay well,
Marc Alexander
Arbitration, Unconscionability: Two Trial Courts Deny Motions To Compel Arbitration, Two Courts Of Appeal Affirm
Elders In Both Cases . . .
Arbitration And An Elder Abuse Act Case.
Dougherty v. Roseville Heritage Partners, et al., C087224 (3rd Dist. 3/30/20) (Krause, Murray, Hoch) is another of the many elder care facility cases in which the enforceability of an arbitration clause is at issue. Here, the trial court denied the defendants’ motion to compel arbitration of claims brought on behalf of a 89-year old man, and the Court of Appeal affirmed.
The arbitration provision was held to be procedurally unconscionable, and a contract of adhesion, because the provision was part of 70 pages of documentation presented to the patient’s daughter at the time of admission, she was hurried, and she conveyed to the facility’s administrator that her father, who was suffering from dementia, had no alternative to the facility.
The Court of Appeal also held that the provision was substantively unconscionable because it limited discovery. While a limitation of discovery is not per se substantively unconscionable, the Court explained that it could be where statutory rights were at issue, as with the Elder Abuse Act, which provides for attorney’s fees and costs for a winning plaintiff, and which also requires proof by clear and convincing evidence.
The most important teachings to be gleaned from this case are that a single factor that may not establish unconscionability in all contexts may do so when combined with other factors, and that the denial of discovery where statutory rights are involved may support substantive unconscionability.
Arbitration And A Consumer Case.
In Dennison v Rosland Capital LLC, B295350 (2/8 4/1/20) (Grimes, Bigelow, Stratton), an 82-year old man, responded to a television ad, eventually purchased nearly $200,000 of gold and silver from Rosland Capital, but allegedly the purchases were worth considerably less than the price paid. The seller moved to compel arbitration, the trial court denied the motion, and the Court of Appeal affirmed.
The most interesting issue concerned whether there was an effective delegation to an arbitrator of decisions about the scope or applicability of the arbitration agreement, such that the court should have been the decision maker. The Court of Appeal explained that the contract contained a severability clause providing that a court of competent jurisdiction might excise an unconscionable provision. Given that provision, there is no clear and unmistakable delegation of authority to the arbitrator to determine if the provision is unconscionable.
The seller of precious metals argued that with a lifetime of experience and years in the military, Mr. Dennison could have negotiated the contract. To which the Court of Appeal replied: “An 82-year-old consumer who calls a telephone number displayed in a television ad to make his first-ever investment in the highly volatile precious metals market, no matter how sophisticated he may be in other matters, cannot reasonably be expected to consider negotiating the terms of a form contract in such tiny print it cannot be read without a magnifying glass.” Besides, in the context of consumer contracts, our Supreme Court has never required a complainant to first show that it tried to negotiate the contract as a prerequisite to establishing unconscionability.
Prof. Carrie Menkel-Meadow Speaks To The OC Bar ADR Section About Negotiating The US Constitution
In The Room Where It Happens . . .
Howard Chandler Christy's Scene at the Signing of the Constitution (1940). Wikipedia article. Public domain.
Prof. Carrie Menkel-Meadow, Distinguished and Chancellor's Professor of Law at UCI, spoke to the ADR Section of the Orange County Bar on February 24, 2020, about "Negotiating the American Constitution." Part of the genius of the 55 delegates to the Constitutional Convention was demonstrated by their devotion to crafting ground rules and decision rules before they turned to substantive debate and negotiation.
The process rules included: (1) dividing leadership among Washington, acting as a neutral chair ("President"), Franklin, acting as a process trouble shooter, and Madison, acting as agenda manager, scribe, reporter, and secretary; (2) confidentiality; (3) limiting speakers to speak only twice on a subject (and waiting till all others had their say before speaking a second time); (4) attendance rules; (5) assignments for committee and task groups; (6) lack of attribution of votes to particular delegates by name; (7) majority rule on most matters (with 9 of 13 states required to ratify).
While not every procedural rule was equally important, it is impossible to imagine how the Constitution as we know it could ever have been drafted if the procedural rules required unanimous rather than majority vote. Confidentiality and anonymity of votes were also extremely important, as both rules helped to build trust, avoided public interference and disparagement, and enabled delegates to change positions.
Prof. Menkel-Meadow concluded on an optimistic note: the Constitution, with amendments, and the government structures created, have proven to be highly durable, lasting more than 200 years.1 At the same time, we can trace some of the current challenges, such as problems with the voting system, back to the very negotiations, linkages, and compromises that resulted in our Constitution.
A copy of Prof. Menkel-Meadow's article entitled "Negotiating the American Constitution (1787-1789) Coalitions, Process Rules, and Compromises," a chapter in Landmark Negotiations from Around the World: Lessons for Modern Diplomacy (Emmanuel Vivet, editor, Intersentia 2019.), can be downloaded free of charge from SSRN by clicking here. You will need to open an account with SSRN, which, however, is free.
_____
1For a recent critical discussion of the Constitution, see the October issue of Harper's Magazine, "Do We Need The Constitution? "- a forum with Donna Edwards, Mary Anne Franks, David Law, Lawrence Lessig, and Louis Michael Seidman.
Reviews: Our Blogger Reviews McMillion$ In The Daily Journal
Review Of McMillion$ Appears In February 21, 2020 Issue Of Daily Journal.
After watching the first two episodes of the HBO documentary mini-series, McMillion$, I reviewed it for the Daily Journal under the heading, "‘McMillion$’ evokes nostalgia for burgers, fries and mere millionaires." The documentary is about McDonald's "Who Wants To Be A Millionaire" Monopoly game scandal that erupted in 2001 after it was discovered by the FBI, with the help of an inside tip, that the game was rigged. Thus far, I have thoroughly enjoyed this fast moving and entertaining documentary. Regrettably, the Daily Journal places articles behind a paywall, and thus I cannot link the article to social media, but perhaps some of you who subscribe to the Daily Journal can take a look at the review.