The Lawletter Vol 34 No 10, November 4, 2010
Paul Ferrer, Senior Attorney, National Legal Research Group
In a recent issue of The Lawletter, see Paul Ferrer, Class Arbitration Requires Specific Agreement, Lawletter Vol. 34, No. 6, at 24, it was noted that the Federal Arbitration Act ("FAA"), 9 U.S.C. §§ 1-16, is based on the fundamental precept that arbitration is a matter of consent, not coercion. See Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 130 S. Ct. 1758, 1773 (2010). As such, parties are "generally free to structure their arbitration agreements as they see fit," and courts and arbitrators are bound to "give effect to the contractual rights and expectations of the parties," as expressed in their agreement. Id. at 1774 (internal quotation marks omitted). In short, "the FAA lets parties tailor some, even many features of an arbitration by contract, including the way arbitrators are chosen, what their qualifications should be, which issues are arbitrable, along with procedure and choice of substantive law." Hall St. Assocs. v. Mattel, Inc., 552 U.S. 576, 586 (2008). As a result, arbitration provisions should be tailored to meet the particular needs of the parties rather than simply cut-and-pasted verbatim from a form book.
Topics:
legal research,
Paul Ferrer,
The Lawletter Vol 34 No 10,
alternative dispute resolution,
Federal Aviation Act,
interstate commerce,
exception
The Lawletter Vol 35, No 1, January 3, 2011
Fred Shackelford—Senior Attorney, Aviation Law
Does federal law establish the standard of care for, or preempt common-law tort claims against, airlines for accidents that occur while passengers are exiting a plane? The Third Circuit Court of Appeals recently addressed this issue of first impression in Elassaad v. Indep. Air, Inc., 613 F.3d 119 (3d Cir. filed July 6, 2010).
In this case, a passenger who was using crutches fell as he descended a staircase that was built into the door of a parked airplane. The passenger sued the airline for negligence, claiming that the defendant had failed to assist him in disembarking from the plane, including having failed to make available all appropriate safety measures and devices. Id. at 123. The airline moved for summary judgment, arguing that the federal Air Carrier Access Act ("ACAA") and the regulations thereunder preempted the claim because they require an airline to provide assistance only upon request, which had not occurred in this case, and they do not obligate carriers to inform disabled passengers of assistive measures unless a wheelchair is requested. Id.
The Elassaad court first distinguished an earlier case that had held that federal law preempted "the entire field of aviation safety." Id. at 125. The court determined that the earlier case, Abdullah v. Am. Airlines, Inc., 181 F.3d 363 (3d Cir. 1999), was limited to in-air safety and did not apply to accidents occurring after a plane has stopped at the gate and disembarkation has begun. The Elassaad court found that, in such cases involving disembarkation, neither express preemption, conflict preemption, nor field preemption applies. The court examined statutory and regulatory language and concluded that none of these exemptions applies in the absence of "operation" or "navigation" of a plane that does not involve its physical movement. 613 F.3d at 130–31.
The court also explained that the ACAA does not preempt claims that do not allege discrimination. "At most, the ACAA might preempt state nondiscrimination laws as they apply to discrimination by air carriers against disabled passengers." Id. at 132. The court found no express or field preemption, because there was no evidence of a clear congressional intent to supersede any relevant state tort law. Id. The court also found no conflict preemption, stating:
These mandates do not prohibit air carriers from offering unsolicited assistance to disabled passengers when the situation warrants it, and they do not evince a congressional intent that air carriers should withhold assistance from disabled passengers when doing so would be negligent or reckless under state law. In any event, we are not persuaded that compliance with duties imposed by state law would require air carriers to act in a manner that would undermine the dignity of disabled passengers. Thus, there is no basis for us to find either that it would have been "impossible" for Independence to comply with both state law and the ACAA, or that state law would have been an "obstacle to the accomplishment and execution of the full purposes and objectives of Congress."
Id. at 133.
The court remanded the case to the district court, with the instruction that "Elassaad's case is governed by state law negligence principles." Id. at 134.
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Topics:
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Fred Shackelford,
The Lawletter Vol 35 No 1,
aviation,
Air Carrier Access Act
The Lawletter Vol 35 No 1, January 3, 2010
Steve Friedman—Senior Attorney, Constitutional Law
The U.S. Supreme Court has never directly addressed the constitutionality of the Pledge of Allegiance, but it has repeatedly suggested, albeit in dicta, that the Pledge is constitutional. See Lynch v. Donnelly, 465 U.S. 668, 676 (1984); County of Allegheny v. ACLU, 492 U.S. 573, 602-03 (1989); see also Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004) (although the issue was resolved on standing grounds, three Justices opined that they would have upheld the Pledge either as a recognition of the importance of religious beliefs to our founding, see id. at 32 (Rehnquist, C.J., concurring), or as a form of ceremonial deism, id. at 36 (O'Connor, J., concurring). On the other hand, several circuit courts of appeal have directly addressed the issue.
In fact, just this past year, the First, Fifth, and Ninth Circuits have joined the Fourth and Seventh Circuits in rejecting various constitutional challenges to state Pledge statutes. See Freedom From Religion Found. v. Hanover Sch. Dist., No. 09-2473, 2010 WL 4540588 (1st Cir. Nov. 12, 2010); Croft v. Perry, 624 F.3d 157 (5th Cir. 2010); Newdow v. Rio Linda Union Sch. Dist., 597 F.3d 1007 (9th Cir. 2010); Myers v. Loudoun County Pub. Sch., 418 F.3d 395 (4th Cir. 2005); Sherman v. Cmty. Consol. Sch. Dist. 21, 980 F.2d 437 (7th Cir. 1992).
As seen in the above-cited cases, the Pledge statutes have been attacked on a variety of constitutional theories. The most common means of challenging the statutes is the Establishment Clause, which prohibits the government from establishing a state religion or otherwise favoring or disfavoring any particular religion. See U.S. Const. amend I. A closely related challenge is based on the Free Exercise Clause, which prohibits the government from compelling the affirmation of religious beliefs or punishing the expression of religious beliefs. See id. Although only addressed in the most recent First Circuit decision, two other possible bases upon which to challenge the Pledge statutes are the Equal Protection and Due Process Clauses. See id. amend XIV. Whereas equal protection guarantees that those who are similarly situated will be treated alike, see id., due process prohibits the government from interfering with certain fundamental rights and liberty interests, see id., including "the fundamental right of parents to make decisions concerning the care, custody, and control of their children," Troxel v. Granville, 530 U.S. 57, 66 (2000).
In short, however, all five circuits to have addressed the issue have held that public school teachers may lead the recitation of the Pledge in class, provided that the students' participation therein is truly voluntary and not coerced. See Freedom From Religion Found. (addressing all four constitutional theories); Croft (addressing just the Establishment Clause theory); Newdow (addressing just the Establishment Clause theory); Myers (addressing just the Establishment Clause theory); Sherman (addressing the Establishment Clause and Free Exercise Clause theories).
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constitutional law,
Steve Friedman,
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Pledge of Allegiance,
constitutional challenge,
Establishment Clause,
Free Exercise Clause
The Lawletter Vol 35 No 1, January 3, 2011
Topics:
legal research,
products liability,
Jeremy Taylor,
The Lawletter Vol 35 No 1,
design defect,
failure to warn,
Sonic Restaurants,
restaurants,
Louisiana,
negligence cause of action
The Lawletter Vol 34, No 12, December 7, 2010
Topics:
legal research,
estate tax,
Economic Growth and Tax Relief Reconciliation Act,
EGTRRA,
Permanent Estate Tax Relief for Families,
Farmers and Small Businesses Act of 2009,
H.R. 4154,
111th Cong.,
tax,
Anne Hemenway,
The Lawletter Vol 34 No 12,
sunset provision
