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- SUPREME COURT OF THE UNITED STATES
- --------
- No. 93-1001
- --------
- ALLIED-BRUCE TERMINIX COMPANIES, INC.,
- and TERMINIX INTERNATIONAL COMPANY,
- PETITIONERS v. G. MICHAEL
- DOBSON et al.
- on writ of certiorari to the supreme court
- of alabama
- [January 18, 1995]
-
- Justice Scalia, dissenting.
- I have previously joined two judgments of this Court
- which rested upon the holding of Southland Corp. v.
- Keating, 465 U. S. 1 (1984). See Volt Information Sci-
- ences, Inc. v. Board of Trustees of Leland Stanford
- Junior Univ., 489 U. S. 468 (1989); Perry v. Thomas,
- 482 U. S. 483 (1987). In neither of those cases, how-
- ever, did any party ask that Southland be overruled,
- and it was therefore not necessary to consider the
- question. In the present case, by contrast, one of
- respondents' central arguments is that Southland was
- wrongly decided, and their request for its overruling has
- been supported by an amicus brief signed by the
- attorneys general of 20 States. For the reasons set forth
- in Justice Thomas' opinion, which I join, I agree with
- the respondents (and belatedly with Justice O'Connor)
- that Southland clearly misconstrued the Federal Arbitra-
- tion Act.
- I do not believe that proper application of stare decisis
- prevents correction of the mistake. Adhering to
- Southland entails a permanent, unauthorized eviction of
- state-court power to adjudicate a potentially large class
- of disputes. Abandoning it does not impair reliance
- interests to a degree that justifies this evil. Primary
- behavior is not affected: no rule of conduct is retroac-
- tively changed, but only (perhaps) the forum in which
- violation is to be determined and remedied. I doubt
- that many contracts with arbitration clauses would have
- been forgone, or entered into only for significantly higher
- remuneration, absent the Southland guarantee. Where,
- moreover, reliance on Southland did make a significant
- difference, rescission of the contract for mistake of law
- would often be available. See 3 A. Corbin, Corbin on
- Contracts 616 (1960 ed. and Supp. 1992); Restatement
- (Second) of Contracts 152 (1979).
- I shall not in the future dissent from judgments that
- rest on Southland. I will, however, stand ready to join
- four other Justices in overruling it, since Southland will
- not become more correct over time, the course of future
- lawmaking seems unlikely to be affected by its existence,
- cf. Pennsylvania v. Union Gas Co., 491 U. S. 1, 34-35
- (1989) (Scalia, J., concurring in part and dissenting in
- part), and the accumulated private reliance will not
- likely increase beyond the level it has already achieved
- (few contracts not terminable at will have more than a
- 5-year term).
- For these reasons, I respectfully dissent from the
- judgment of the Court.
-