Argument Is Summarized In SCOTUSblog.
On February 23, 2017, Professor Ronald Mann of Columbia Law School provided argument analysis in SCOTUSblog of yesterday's oral argument in Kindred Nursing Centers Limited Partnership v. Clark. By the tenor of the argument, which appears to have been hostile to Kentucky's position that the right to try personal injury cases against nursing homes was not preempted by the FAA, Professor Mann pretty much predicts a reversal by the Supreme Court of the State of Kentucky Supreme Court ruling. The State of Kentucky had argued that nursing home powers of attorney needed to be specifically drafted to confer the power to give up the right to a jury trial in arbitration, an argument that runs up against the objection that it discriminates against arbitration.
COMMENT: On February 19, 2014, I reviewed Professor Imre Szalai's Outsourcing Justice, a fascinating history of arbitration in the United States. Professor Szalai argued that the creators of the Federal Arbitration Act conceived it primarily as a means to achieve a speedy and efficient resolution of business disputes. Professor Szalai has filed an amicus brief in Kindred Nursing Centers, in which he concludes, based on his reading of, "[t]he text of the FAA, its legislative history, and the historical background of the FAA's enactment demonstrate that the FAA was never intended to govern personal-injury claims." Thus, he reframes the argument as one of coverage by the FAA, rather than preemption, based on his reading that section 2 of the FAA limits coverage to disputes arising out of contracts and interstate commerce. He argues that personal injury disputes are altogether different, as they arise out of tort law. While there may be some real merit to the historical argument that the FAA was intended to serve merchants with commercial sophistication in business disputes among themselves, and that this is something quite different from a personal injury claim arising out of tort law, a lot of water (i.e., case law), has flowed under the bridge since the Federal Arbitration Act was enacted in 1925, so that one would be hard-pressed to declare Professor's Szalai's argument to be a dead bang winner in 2017.