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1 IN THE SUPREME COURT OF THE UNITED STATES

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3 CIRCUIT CITY STORES, INC., :

4 Petitioner :

5 v. : No. 99-1379

6 SAINT CLAIR ADAMS :

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8 Washington, D.C.

9 Monday, November 6, 2000

10 The above-entitled matter came on for oral

11 argument before the Supreme Court of the United States at

12 10:02 a.m.

13 APPEARANCES:

14 DAVID E. NAGLE, ESQ., Richmond, Virginia; on behalf of

15 the Petitioner.

16 MICHAEL RUBIN, ESQ., San Francisco, California; on behalf

17 of the Respondent.

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1 C O N T E N T S

2 ORAL ARGUMENT OF PAGE

3 DAVID E. NAGLE, ESQ.

4 On behalf of the Petitioner 3

5 ORAL ARGUMENT OF

6 MICHAEL RUBIN, ESQ.

7 On behalf of the Respondent 26

8 REBUTTAL ARGUMENT OF

9 DAVID E. NAGLE, ESQ.

10 On behalf of the Petitioner 45

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1 P R O C E E D I N G S

2 (10:02 a.m.)

3 CHIEF JUSTICE REHNQUIST: We'll hear argument

4 now in Number 99-1379, Circuit City Stores v. Saint Clair

5 Adams.

6 Mr. Nagle.

7 ORAL ARGUMENT OF DAVID E. NAGLE

8 ON BEHALF OF THE PETITIONER

9 MR. NAGLE: Mr. Chief Justice, and may it please

10 the Court:

11 The Federal Arbitration Act is a declaration of

12 Federal policy favoring arbitration, arbitration

13 agreements, and its coverage extends to the very limits of

14 Congress' Commerce Clause power. There's an exception to

15 the act, the scope of which is in dispute today. The

16 respondent asserts that all contracts of employment are

17 excluded from the coverage of the act. That simply cannot

18 be correct.

19 The act does not say that it excludes all

20 contracts of employment. Section 1 excludes only certain

21 kinds of employment contracts, the contracts of employment

22 of seamen, railroad employees, any other class of workers

23 engaged in foreign or interstate commerce.

24 Beginning nearly 50 years ago, 11 courts of

25 appeals have read that text in a uniform, consistent

3

1 manner, finding it to create a narrow exclusion applicable

2 only to those workers who are actually engaged in the

3 movement of people or goods across State lines, and we

4 contend that that's the only interpretation consistent

5 with the text of the statute.

6 QUESTION: Is the word class important to your

7 argument?

8 MR. NAGLE: Your Honor --

9 QUESTION: Or would your argument be just the

10 same without --

11 MR. NAGLE: I do not believe that it

12 significantly alters it. I think the class is a term

13 which is used in the Railway Labor Act, for instance,

14 which was under consideration and passed the following

15 year to refer to categories of craft or class of

16 employees.

17 QUESTION: Well, it would seem to me to help

18 your argument somewhat, because we -- the statute asks us

19 to think in terms of classes of workers, rather than

20 individual workers engaged --

21 MR. NAGLE: Oh, certainly, Your Honor. It

22 identifies a group or a category of employees in the same

23 manner that seamen and railroad employees are grouped.

24 Seamen, of course, was a recognized term. As the opinion

25 of the Court -- as Justice O'Connor's opinion for the

4

1 Court in McDermott International recognized, seamen was a

2 term having specific meaning. Railroad employees was a

3 term defined under the Transportation Act of 1920 and also

4 in the Railway Labor Act, so --

5 QUESTION: Mr. Nagle, I guess at the time that

6 this act was adopted in -- what, 1925?

7 MR. NAGLE: Yes, Your Honor.

8 QUESTION: We had not taken as broad a view of

9 the Commerce Clause power as is true today, is that

10 correct?

11 MR. NAGLE: I would acknowledge that, Your

12 Honor.

13 QUESTION: And so Congress probably didn't have

14 in mind that its jurisdiction was as broad as we would

15 have subsequently indicated, and apparently it intended at

16 least that the act not include or cover contracts of

17 employment over which their authority to regulate was very

18 clear, right?

19 MR. NAGLE: That is correct, Your Honor. They

20 were specifying seamen and railroad employees.

21 QUESTION: And the indications were that at

22 least then Secretary of Commerce Hoover thought employees

23 shouldn't be covered at all, and he presented language to

24 the Congress which approved it, and yet you want us to say

25 that Congress did intend to include for arbitration

5

1 contracts of employment over which the jurisdiction was

2 most questionable, and yet exclude it for those where the

3 jurisdiction of Congress was clearest at the time, which

4 seems a little odd to me.

5 MR. NAGLE: Well, there are several points in

6 response, Your Honor. First, the letter from Secretary

7 Hoover was a letter submitted to the committee in 1923,

8 written on the day that it was entered, and there was no

9 further explanation.

10 I would also submit that we need to look to the

11 language of the coverage provision, section 2 of the act,

12 and contrast that with the language contained in section 1

13 of the act.

14 I acknowledge that Commerce Clause authority

15 over seamen and railroad employees would have been clear,

16 but I would also point -- bring to the Court's attention,

17 of course, the fact that there were statutory mechanisms

18 in place, and also the single item that we know most

19 clearly is that the seamen as a group, through their

20 representative, Mr. Bruce, have specifically asked that

21 they be carved out. While it may be somewhat difficult to

22 determine exactly what Congress' motive was, they were

23 responding to a request from a constituency group to be

24 carved out.

25 QUESTION: Well, the other most troublesome

6

1 point for me, anyway, is this Court's decision in Allied-

2 Bruce, which dealt with section 2, and said that we're

3 going to interpret it now as reaching the full scope of

4 Congress' Commerce Clause power. Why would we not do the

5 same for this section 1?

6 MR. NAGLE: Well, in Allied-Bruce, which is one

7 of the cases upon which we would principally rely, that

8 was an interpretation of section 2, the coverage, and

9 certainly was making it clear that the Court recognized

10 that Congress was acting to the full with respect to its

11 Commerce Clause power.

12 Section 1 is an exclusion. It is to be narrowly

13 construed. I would submit that there is a general policy

14 that whenever we have a statute which clearly enunciates a

15 public policy of broad scope that any exclusion to that

16 should be narrowly construed.

17 QUESTION: Why is that? I mean, it seems to me

18 an exception is just as important as the rule. Why should

19 we unrealistically construe it just because it's an

20 exception?

21 MR. NAGLE: I certainly would not suggest

22 that --

23 QUESTION: Would you tell that to the members of

24 Congress? When you vote for this exception, bear in mind

25 that we're not going to take it to have its most

7

1 reasonable meaning. We're going to construe it narrowly.

2 Why? Why would we do that?

3 MR. NAGLE: I apologize, Your Honor. I was not

4 suggesting that we take an unreasonable meaning. In fact,

5 I'm suggesting that we take the most reasonable

6 construction that Congress --

7 QUESTION: Well then, fine, so your case really

8 turns, it seems to me, on the point that the language used

9 by the Congress that enacted this statute in section 1 was

10 at that time narrower than the language used in section 2.

11 MR. NAGLE: Absolutely, Your Honor.

12 QUESTION: Now, what support do you have for

13 that?

14 MR. NAGLE: I would point the Court first to --

15 for contemporaneous construction of the language I would

16 point the Court to Illinois Central Railroad v. Behrens, a

17 1914 case, where the Congress clearly recognized -- the

18 Court clearly recognized that the Congress had very broad

19 authority under the FELA statute over instate commerce,

20 recognized that even trains, for instance, moving in

21 intrastate commerce were nevertheless in the channels of

22 commerce, and so when the FELA in 1914 limited its

23 coverage to an employee who was injured while employed in

24 commerce, this Court found that that was a narrower

25 construction --

8

1 QUESTION: Employed in is not the same as

2 engaged in, but I'd like to go back, first, to the

3 involving term.

4 MR. NAGLE: Yes.

5 QUESTION: You're using words and say that --

6 saying that in the second section, involved is a very

7 broad term, and in the first section engaged is a narrow

8 term.

9 MR. NAGLE: Yes, Your Honor.

10 QUESTION: But some of the briefs in this case

11 tell us that involved in is not affecting commerce, that

12 indeed this is the only piece of Federal legislation that

13 uses the words, involved in. Is that so?

14 MR. NAGLE: To my knowledge it is, and that's

15 what the Court indicated in the Allied-Bruce decision.

16 QUESTION: So -- but you're asking us to say

17 that Congress meant in 1925 something different in using

18 these two words.

19 MR. NAGLE: In involving commerce says, as this

20 Court found in Allied-Bruce, that it's the functional

21 equivalent of affecting commerce, which is --

22 QUESTION: Well, let's be precise about the

23 words. Are we talk about, involved in commerce, or

24 involving commerce?

25 MR. NAGLE: Involving commerce, in section 2,

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1 the coverage.

2 QUESTION: That's quite different than involved

3 in commerce. You can say someone is involved in commerce.

4 I think that's quite different from saying that somehow

5 this -- it's a contract involving commerce.

6 MR. NAGLE: I -- I'm sorry, Your Honor, I'm not

7 using the phrase, involved in --

8 QUESTION: I think it's important to your case

9 that involving commerce is a broader concept than involved

10 in commerce.

11 MR. NAGLE: Yes, Your Honor. I"m not aware that

12 involved --

13 QUESTION: Involving commerce means pertaining

14 to commerce.

15 MR. NAGLE: Yes, Your Honor.

16 QUESTION: Involved in commerce means pretty

17 much the same as engaged in commerce, it seems to me, and

18 so if involving commerce is the same as involved in

19 commerce, and involved in commerce is the same as engaged

20 in commerce, you lose.

21 MR. NAGLE: Your Honor, I --

22 QUESTION: To put it shortly.

23 MR. NAGLE: I am not referring to the phrase,

24 involved in commerce.

25 QUESTION: Because it doesn't appear. The

10

1 phrase is involving commerce.

2 MR. NAGLE: Yes, Your Honor.

3 QUESTION: That's the broad coverage of

4 section --

5 MR. NAGLE: Section 2, yes.

6 QUESTION: Of section 2.

7 MR. NAGLE: Yes. Section 1's exclusion is for

8 contracts of employment of seamen, railroad employees, and

9 other workers engaged in commerce.

10 QUESTION: And they could have said in that

11 section, don't you think -- do you think it would have

12 been any different if they had said, seamen involved in

13 commerce, as opposed to engaged in commerce?

14 MR. NAGLE: As Your Honor has recognized, they

15 did not use involved in. That perhaps would have

16 supported Mr. Adams' argument that they were trying to

17 show parallel construction. I would submit, Your Honor,

18 that the fact that the Congress could have ended with the

19 phrase, contracts of employment, then we would not be here

20 today if that was their intent, or could have used

21 parallel language, which would have supported respondent's

22 suggestion that they had the same meaning.

23 QUESTION: But isn't the Congress' notion of the

24 limits of its power, doesn't that explain why they didn't

25 say contract of employment, period?

11

1 MR. NAGLE: I would not, Your Honor, because if

2 section 2 is the coverage provision and Congress was

3 making reference to its Commerce Clause power in coverage,

4 there would certainly be no reason for them to make

5 reference to or be concerned by the limits of their

6 Commerce Clause power in drafting an exclusion from the

7 statute. If they had --

8 QUESTION: Well, can you give us a better

9 explanation? I mean, this goes back to Justice O'Connor's

10 question about the oddity of an exclusion which excluded

11 those contracts which were most obviously at the time of

12 drafting within the congressional power, without touching

13 those as to which the power was doubtful, or perhaps

14 absent, and as I understood your answer, your answer was a

15 suggestion that perhaps politics was simply the answer. I

16 mean, the one particular political group had asked for it.

17 Can you think of any other reason to draw what

18 to me also seems like an odd distinction in the

19 congressional mind?

20 MR. NAGLE: I would point to Judge Posner's

21 opinion in the Pryner case out of the Seventh Circuit, in

22 which he concluded that the Seventh Circuit concluded in

23 his opinion that this section 1 exclusion should be

24 narrow. He pointed again to the advocacy of the seamen's

25 union, and the recognition that they were a heavily

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1 regulated industry that already had a statute in place

2 that provided for an administrative process for resolution

3 of disputes.

4 QUESTION: Then why didn't they just stop with

5 seamen?

6 MR. NAGLE: His -- Judge Posner's suggestion is

7 that the railroad industry, the Railway Labor Act was in

8 the works at the time.

9 QUESTION: Okay.

10 MR. NAGLE: It was also a similarly heavily

11 regulated --

12 QUESTION: All right.

13 MR. NAGLE: -- heavily unionized industry, and

14 Judge Posner's opinion goes on that Congress may have

15 anticipated, quite correctly, that motor carriers would

16 also become a heavily regulated industry, and in the --

17 QUESTION: What conclusion do you draw from

18 that?

19 I'm wondering, under your view, are employees of

20 travel agents covered within the exclusion, or are they

21 covered?

22 MR. NAGLE: Travel agents, I would -- under our

23 interpretation I do not believe that they would be covered

24 because they're not engaged --

25 QUESTION: How about ticket agents for

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1 railroads?

2 MR. NAGLE: Railroad employees, to the extent

3 that they fall within the definition of employee, for

4 instance, under the Railway Labor Act, I would submit that

5 because railroad employees is a -- or employees is a term

6 under that statute, which includes various employees --

7 QUESTION: So you draw a distinction between

8 ticket agents who sell them as employees of the railroad

9 and those who sell them as employees of the travel agent?

10 MR. NAGLE: I draw a distinction --

11 QUESTION: You think that's what Congress had in

12 mind?

13 MR. NAGLE: I draw the distinction because

14 Congress specifically referred to railroad employees.

15 When we get into travel agents -- and I apologize if you

16 were saying employees of railroads who are travel agents,

17 but I think --

18 QUESTION: -- railroad employees engaged in

19 foreign or interstate commerce.

20 MR. NAGLE: Yes, Your Honor.

21 QUESTION: But I take it what you're suggesting,

22 you have to give some content to other class of workers

23 engaged in commerce. Don't you suggest that that's

24 engaged in transportation or something?

25 MR. NAGLE: Yes, Your Honor. Certainly, in

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1 trying to read the statute --

2 QUESTION: You see, if we accept your view we

3 have to have a jurisprudence of what transportation is.

4 If we accept the respondent's view, we have to have a

5 jurisprudence on what an employment contract is. Both

6 require interpretation, but the latter is a statutory

7 term.

8 MR. NAGLE: Yes, Your Honor.

9 QUESTION: The former is not.

10 MR. NAGLE: I would acknowledge that in order to

11 determine the meaning of the final phrase there, any other

12 class of workers engaged in foreign or interstate

13 commerce, that we need to -- that we need primarily to

14 recognize the doctrine of ejusdem generis, and the fact

15 that it does follow after the references to seamen and

16 railroad employees.

17 They are specific groups in a list. They

18 certainly have something in common, that being that they

19 are transportation workers, and I would also submit that

20 it's inappropriate to read a statute to eliminate the

21 reference to seamen and railroad employees. If reading it

22 as respondent contends, it's essentially an exclusion for

23 all contracts of employment of all workers engaged in

24 foreign or interstate commerce, and that's, as Judge

25 Edwards said in the Cole v. Burns Security case --

15

1 QUESTION: Well, I suppose their answer is,

2 Congress has already regulated seamen, they're about to

3 regulate railroad employees, so they want to make very

4 sure that those are excluded, and then they go on to the

5 limits of their Commerce power, which were vague at the

6 time, and give everyone else the same protection that

7 seamen and railroad workers have.

8 MR. NAGLE: I simply don't think that that

9 conforms with the statute. If we are just reading the

10 exclusion, Congress has -- section 2, the coverage is very

11 broad, using the language to demonstrate the breadth of

12 coverage. The exclusion is very narrow, and if one

13 chooses to look to the legislative history that Mr. Adams

14 and his amici point to, there's very, very limited

15 legislative history. There's essentially one hearing

16 before a Senate committee in 1923 with three Senators

17 present.

18 QUESTION: Well, skipping the legislative

19 history, Mr. Nagle, why is it so narrow? It says, engaged

20 in commerce, and even in 1925 that extended beyond

21 transportation workers. You want the cutoff to be

22 transportation workers, I take it.

23 MR. NAGLE: Your Honor, I'm not aware of cases

24 that in 1925 would have said, engaged in commerce would go

25 beyond transportation workers. I think that involving

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1 commerce would -- the section 2 language goes to the

2 breadth of it, but in commerce, this Court, as I

3 mentioned, Illinois Central Railroad case, the Gulf Oil

4 Corporation case, the Bunte Brothers case, in each of

5 those the Court said that in commerce is not the

6 equivalent of affecting commerce.

7 In the Bunte Brothers case the Court said, words

8 derive vitality from the aim and nature of the specific

9 legislation.

10 QUESTION: So communications workers, those were

11 not included as engaged in commerce?

12 MR. NAGLE: They would not have been included as

13 engaged in commerce.

14 QUESTION: You say as of 1925, the only workers

15 engaged in commerce were those who were engaged in the

16 moving of goods, is that --

17 MR. NAGLE: In the movement of people and goods

18 across State lines, Your Honor.

19 QUESTION: Well, if that's the case, then I

20 think what we're faced with on your own interpretation is

21 an exclusion which is as complete in relation to the

22 coverage of employees as the inclusion at the beginning of

23 the provision is in relation to commerce in general, and

24 so it seems to me that your argument supports the

25 interpretive theory that Congress was, in fact, in each

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1 instance, in the coverage and in the exclusion,

2 legislating to the limits, and if the limits change as to

3 the one, we ought to recognize a change in the limits as

4 to the other.

5 MR. NAGLE: I would disagree, Your Honor, in --

6 with respect to the example that Justice Ginsburg just

7 gave, with respect to telephone, telegraph workers. In

8 1877 this Court in the Pensacola Telegraph case had found

9 that telephone telegraph workers affected commerce, were

10 involved in commerce, but they were not engaged in

11 commerce in that they were not actually moving goods --

12 certainly we would acknowledge that telephone operators

13 were not moving goods across State lines.

14 QUESTION: When you are talking about all

15 workers, a lot of water has flowed over the dam or under

16 the bridge since 1925.

17 MR. NAGLE: Yes, Your Honor.

18 QUESTION: I just would like to focus, you to

19 focus for a minute on the consequences. One of the things

20 that's strongest for you is that in all the other circuits

21 but the Ninth, for a long time have limited to

22 transportation workers this exemption.

23 MR. NAGLE: Certainly, Your Honor.

24 QUESTION: So what bad would happen if we bought

25 the Ninth Circuit? That is, in thinking about it, I

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1 thought that the purpose of this act is to stop State

2 court hostility to arbitration. Isn't that the basic

3 idea?

4 MR. NAGLE: Yes, Your Honor.

5 QUESTION: All right. So if we read workers out

6 of it you still have the NLRB there today, and doesn't the

7 NLRB have the power today to protect any worker, just --

8 you wouldn't need this -- to protect them because the NLRB

9 operating under section 301, or just its general power,

10 could protect all these workers adequately, and therefore

11 there's no reason not to read them out and to invent

12 distinctions between transportation and other kinds of

13 worker. Now, what's your response to that?

14 MR. NAGLE: Well, certainly the National Labor

15 Relations Act and the Labor Management Relations Act come

16 into play in the collective bargaining context.

17 QUESTION: Who wouldn't they have power to

18 protect? Who wouldn't they have power -- if the States

19 become unreasonable in respect to arbitration, i.e., they

20 stop enforcing arbitration agreements with workers,

21 couldn't the NLRB come right in there and say, don't be

22 unreasonable, we want the right rules here, and we'll both

23 get the arbitration and protect the workers?

24 Is there anyone on -- in other words, on the

25 Ninth Circuit interpretation, that's somehow going to be

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1 left out in the cold when they want an arbitration

2 agreement?

3 MR. NAGLE: Your Honor, certainly the Ninth

4 Circuit started its analysis in the Craft case, which was

5 a collective bargaining agreement case --

6 QUESTION: I mean, I'm interested in a practical

7 fact. This statute is to stop the hostility of the States

8 to arbitration. I wouldn't want workers who wanted

9 arbitration to be left out in the cold, any more than

10 anybody else, and then I thought, well, if we accept the

11 Ninth Circuit they're not going to be left out in the

12 cold, because they have the NLRB in there to protect them

13 and, moreover, it will help them somewhat in terms of the

14 purposes because they won't get these agreements shoved in

15 their face and they will be able perhaps to have more

16 freedom to choose.

17 But I'm not -- I'm not expressing a view on

18 that. Whatever the right thing is, we have people there

19 on the board to protect them. That's -- so in other

20 words, if I deny your interpretation, am I causing any

21 harm? Leaving the words out of it, I want to know the

22 consequences.

23 MR. NAGLE: The consequences, Your Honor, is

24 that arbitration and the Federal policy favoring

25 arbitration, which is designed to reduce litigation, will

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1 lead to a period of tremendous turmoil while the courts

2 are trying to grapple with the application and enforcement

3 of arbitration agreements.

4 The extent to which they're enforceable under

5 various laws, choice of law provisions, when arbitration

6 agreements contain a governing law provision, the question

7 that I think is very significant, although it's only

8 mentioned in Mr. Adams' brief in footnote 19, the question

9 of arbitrability of Federal employment statutes, if the

10 FAA is taken out of the mix, where this Court relied in

11 part on the liberal Federal policy favoring arbitration in

12 Gilmer and used that to -- as a consideration with respect

13 to enforcement of arbitration agreements, if the FAA is

14 taken out of the mix, I think note 19 in Adams' brief

15 suggests that there's an effort to avoid arbitration of

16 even the Federal claims, and --

17 QUESTION: Well, even if the FAA doesn't apply

18 to employment contracts, State arbitration rules can --

19 they can be used, can they not?

20 MR. NAGLE: There are State arbitration rules

21 which vary dramatically from State to State, Your Honor,

22 certainly. That I think does not solve the issue,

23 because, as this Court has recognized on a number of

24 occasions, one of the great advantages of the broad

25 application of the FAA is providing that substantive law

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1 of arbitrability.

2 If we are to revert back to the State

3 substantive law of arbitrability, we will have the

4 determinations made on various statutes, we'll have the

5 issues that arise when a contract arbitration agreement is

6 entered into in one State, performed in a third, a claim

7 is brought in a third, we'll have removal to Federal court

8 and a question of which State substantive statute on

9 arbitrability --

10 QUESTION: Why would you have removal to the

11 Federal court unless you had diversity if it's State law

12 that controls?

13 MR. NAGLE: In -- there may be cases where there

14 is diversity, just a --

15 QUESTION: Well, if these are employment

16 relations, wouldn't most of them be diversity -- most of

17 them be nondiverse, that is, a worker and employer in the

18 same State?

19 MR. NAGLE: I would disagree, Your Honor. I

20 think there are many large national corporations that --

21 such as Circuit City which is primarily -- principal place

22 of business is in Virginia, and so to the extent that

23 large companies have employees in many States there may

24 very well be diversity, and then when the matter is

25 removed on diversity grounds there will be the question as

22

1 to which State substantive law of arbitrability would

2 apply.

3 QUESTION: Wouldn't it be the place where the

4 work is performed?

5 MR. NAGLE: Well, it may be, Your Honor. On

6 some occasions this Court has had arbitration agreements

7 such as in Allied-Bruce, where it was essentially one

8 sentence in a termite prevention contract. A number of

9 employers since Gilmer, and in reliance on Gilmer, have

10 developed very sophisticated arbitration programs which

11 include, among other things, governing law provisions, and

12 so you may have a corporation which is based in one State,

13 has a detailed arbitration rules and procedures, as

14 Circuit City does --

15 QUESTION: Nevertheless, it would be State law

16 that would control, some State law.

17 MR. NAGLE: It will be some State law. One of

18 the issues that the courts will need to determine is when

19 we have a governing law provision such as in the Circuit

20 City agreement, specifying that the Virginia Uniform

21 Arbitration Act would apply, and then the question will

22 arise whether, for instance, California would honor that

23 reference to that State statute.

24 I think it's simply an issue that the courts

25 will have to grapple with for a number of years until

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1 someone returns here on that issue.

2 QUESTION: Mr. Nagle, at the time this -- the

3 exclusion was passed, can you tell me whether it was

4 customary to require each party to bear a portion of the

5 cost of the arbitration, so was it -- would it have been

6 customary at that time to require employees to pay part of

7 the up-front arbitration costs?

8 MR. NAGLE: Your Honor, I didn't hear the

9 beginning. Are you saying in 1925 --

10 QUESTION: Yes.

11 MR. NAGLE: -- would it have been customary?

12 QUESTION: Yes.

13 MR. NAGLE: It was an administrative machinery

14 that was put in place. I cannot represent to the Court

15 that it would have been customary on that. I do not know,

16 Your Honor.

17 QUESTION: Could you tell me just for the

18 record, what are the best cases that you have to establish

19 the proposition that at the time this legislation was

20 enacted it was already well-established that engaged in

21 commerce was not the limit of the Congress' power over

22 interstate commerce? What are your best cases?

23 MR. NAGLE: Illinois Central Railroad v.

24 Behrens, the Shanks v. Delaware, the railroad case. Those

25 are pre-FAA cases. Certainly subsequent interpretation,

24

1 if you look at Bunte Brothers case, which was involving --

2 I'm sorry. In commerce was not equivalent to affecting

3 commerce. It was sometime later, but it referred to the

4 Clayton Act, which had been passed in 1908.

5 In fact, another point to note on that case is

6 that they noted where it was reenacted in 1950, and that

7 Congress did not change the language, despite the fact

8 that this Court had made clear there was a difference

9 between in commerce and affecting commerce. The

10 reenactment without change seemed to suggest that Congress

11 had acquiesced in that.

12 I would point out that the Federal Arbitration

13 Act was reenacted in 1949 without change, after the law

14 had become quite clear over that respect.

15 QUESTION: Have you -- just, I want to be sure

16 you give us your best answer to Justice O'Connor's initial

17 question as to the reason why there's this rather narrow

18 exception from a broad provision.

19 MR. NAGLE: I would say that while Congress'

20 motives are not always clear, and the very limited

21 legislative history doesn't provide any guidance on that,

22 what we know is that Mr. Furiceff of the Seamen's Union

23 specifically asked that his union be carved out. We know

24 that seamen and railroad employees were groups that

25 already had by statute an administrative mechanism for

25

1 resolution of disputes.

2 Pryner and Asplundh Tree both point out that

3 they were heavily regulated, and that there -- I would

4 conclude, if I could, that there is nothing in the

5 legislative history to suggest that Congress was

6 contemplating the scope of its authority when it crafted

7 the words in section 1.

8 If I may reserve the remainder of my time.

9 QUESTION: Very well, Mr. Nagle.

10 Mr. Rubin, we'll hear from you.

11 ORAL ARGUMENT OF MICHAEL RUBIN

12 ON BEHALF OF THE RESPONDENT

13 MR. RUBIN: Mr. Chief Justice, and may it please

14 the Court:

15 We agree with petitioner in response to the

16 question from Justice Scalia that the focus of the Court's

17 inquiry today has to be on what Congress meant in 1925,

18 whether it intended the section 1 exclusion to go -- to

19 remain symmetrical with the section 2 coverage.

20 QUESTION: In 19 --

21 QUESTION: Mr. Rubin, if your position is

22 correct, why didn't, in section 1, Congress simply stop

23 with, shall apply to contracts of employment, period?

24 MR. RUBIN: Congress could have done it that

25 way, but it used the language that was presented to it by

26

1 Secretary Hoover, who stated -- whose letter was both in

2 the 1923 committee hearing and was also reprinted in the

3 1924 committee hearing.

4 Secretary Hoover --

5 QUESTION: When was the bill actually passed?

6 When was the law passed?

7 MR. RUBIN: It was enacted into law in February

8 1925.

9 QUESTION: '25.

10 MR. RUBIN: Secretary Hoover, just 2 weeks after

11 the seamen's union expressed concerns not only about its

12 application to seamen, but according to Mr. Furiceff to

13 seamen, railroad men and sundry other workers in

14 interstate and foreign commerce, wrote a letter to the

15 chair of the Senate Judiciary Committee in which he said,

16 if there appear to be objections to the inclusion of

17 workers' contracts, then he proposes that the following

18 language be used.

19 The language that he proposed is the identical

20 language that Congress used in the section 1 exclusion.

21 While --

22 QUESTION: That's very good sleuthing, but I

23 mean, this is a letter. This is not even a committee

24 report. It is a letter sent 2 years before this statute

25 is enacted, and you want us to assume that that is the

27

1 only reason, not only that Congress didn't end the

2 sentence in section 1 with employment contracts, but it

3 is -- but also it explains why Congress didn't at least,

4 if it was not going to end the sentence there, at least

5 use the same language in section 1 that it did in section

6 2.

7 MR. RUBIN: There is --

8 QUESTION: I mean, that is a very difficult

9 thing to explain.

10 MR. RUBIN: There is a linguistic explanation

11 for what they did. While Congress could have limited that

12 way had it been presented in a different way, Congress' --

13 Secretary Hoover asked Congress to expedite passage of the

14 bill to satisfy the commercial interests who were urging

15 it.

16 QUESTION: I gather he failed, since he sent the

17 letter in 1923 and the bill was passed in 1925.

18 (Laughter.)

19 MR. RUBIN: He did -- he was successful in

20 getting the language that he proposed included in the bill

21 immediately after he proposed it, but why is the

22 additional language in there, what purpose does it serve,

23 because that, I think, is the response to the Chief

24 Justice's question.

25 Well, we start with the first two phrases, the

28

1 first two classes, seamen, and railroad employees. Now,

2 in 1925, given how limited Congress' Commerce Clause power

3 was, there weren't that many categories of workers who

4 were actually covered by Congress. In fact, the only

5 private sector employees that were covered by any Federal

6 statute under the Commerce Clause power in 1925 were

7 seamen and railroad employees, so not only was --

8 QUESTION: They were covered by the Commerce

9 Clause power, or by any Federal statutes?

10 MR. RUBIN: I'm sorry. They were covered by

11 Federal statutes.

12 QUESTION: By Federal statutes.

13 MR. RUBIN: Excuse me if I misspoke.

14 QUESTION: No, I --

15 MR. RUBIN: Then -- then, because the objection

16 from labor, which Secretary Hoover at least urged Congress

17 to overcome, however quickly or not it might have

18 happened, referred more broadly to all classes of

19 employees, because the underlying concern was the

20 disparity in bargaining power, as this Court acknowledged

21 in Prima Paint in its footnote 9, when it referred to the

22 section 1 exclusion, because the disparity in bargaining

23 power applies between all workers and bosses as perceived

24 by labor at the time, and as reflected by Congress in 1932

25 in the Norris La Guardia Act. Congress went beyond that.

29

1 QUESTION: This would include an employment

2 contract between a CEO and a corporation, I assume, right?

3 You're --

4 MR. RUBIN: There is --

5 QUESTION: I mean, you're painting this as --

6 MR. RUBIN: Our position is yes.

7 QUESTION: Your position is simply covering the

8 hard-hat-lunch-bucket worker, but I assume it would cover

9 a contract between a CEO and his corporation.

10 MR. RUBIN: Just like FELA at the time, we

11 believe, would have covered an on-the-job injury by a high

12 executive of a railroad company, it is our construction

13 that worker and employee means anyone employed by a

14 company. There is an amicus brief that argues otherwise.

15 QUESTION: Yes, because you'd say that it covers

16 workers, and workers might have had a definition at the

17 time that did not include the CEO.

18 MR. RUBIN: That is possible.

19 QUESTION: We don't have to decide that.

20 MR. RUBIN: You certainly do not have to decide

21 that.

22 QUESTION: Mr. Rubin, what was well-established

23 as of 1925 about the meaning of Congress' power? Was it

24 well-established that engaged in commerce was narrower

25 than Congress' full power? Was there already the

30

1 affecting commerce notion --

2 MR. RUBIN: There was not.

3 QUESTION: -- floating out there?

4 MR. RUBIN: There was not. We have cited

5 numerous statutes, as well as cases of the time. There is

6 not a single statute in effect in 1925 or a case

7 describing the commerce power as it pertained to employees

8 that used a broader term than engaged in.

9 QUESTION: What about the case cited by opposing

10 counsel, Behrens.

11 MR. RUBIN: Behrens and Shanks. The Behrens and

12 Shanks case arose under the amended FELA, the 1908 version

13 of FELA. That act referred initially to engaged in, but

14 then on two separate occasions had what we characterize as

15 a temporal limitation. It said, while engaged in.

16 It specifically limited the scope to less than

17 the full commerce power, as would have been expressed by

18 the term, engaged in, and in Shanks and in Behrens, and in

19 several other cases, this Court expressly noted that

20 whether workers were covered by the amended FELA or not,

21 turned upon whether the injury they suffered occurred

22 while they were engaged in.

23 It didn't focus on the type of work they

24 generally performed. It -- for instance, in Behrens, I

25 believe, the worker was working on an interstate --

31

1 intrastate traffic. His job often included interstate

2 traffic. He would be engaged in commerce, but because at

3 the time he was hit by the locomotive he was engaged in

4 solely intrastate work, the Court said that, given the

5 temporal limitation of FELA, it doesn't apply.

6 So those cases support our position. Shanks in

7 particular supports our position because Shanks goes to --

8 the FELA law was very complicated. There were many, many

9 cases coming before this Court trying to decide who is and

10 who is not covered by the various limitations. Shanks

11 goes through and summarizes the Supreme Court

12 jurisprudence of the time under FELA and makes very clear

13 that engaged in is as broad as it gets, because it

14 includes not just those narrowly working on the trains as

15 they were going down the tracks, but everyone whose job is

16 sufficiently related as to be practically a part of the

17 interstate commerce.

18 So at the time, in 1925, engaged in was a term

19 of art. It was a term of art that reached to the full

20 scope of Congress' commerce power. That is to complete

21 the answer as to -- actually, it doesn't quite complete

22 the answer, because there are still some words that we

23 have to address. That explains, we believe, why there was

24 the reference to in -- engaged in foreign or interstate

25 commerce, because that was the common use of art

32

1 whenever --

2 QUESTION: But it wasn't -- but then they would

3 have used it in section 2. I mean, you have a very

4 difficult phenomenon to explain, that is the fact that

5 Congress obviously and intentionally used different

6 language in section 1 and section 2. That is just

7 terrible drafting, just terrible drafting if Congress was

8 trying to do what you say they were trying to do.

9 MR. RUBIN: The two sections were drafted at

10 different times by different people. A --

11 QUESTION: That may well be, but --

12 MR. RUBIN: A --

13 QUESTION: -- that's terrible drafting.

14 MR. RUBIN: The --

15 QUESTION: I mean, Congress is supposed to come

16 up with a coherent bill, and we usually assume it was all

17 drafted at the same time and somebody sat down and used

18 the same words to mean the same things throughout the

19 statute, and we usually assume that when they use

20 different words they mean different things.

21 MR. RUBIN: There is a reason why the locutions

22 in section 2 are different from those in section 1, and

23 that is because the language in section 2, the coverage

24 provision refers to -- and it's an odd locution, one that

25 we've certainly not seen in other statutes -- contract

33

1 evidencing a transaction involving commerce.

2 The word engaged, had engaged come first, would

3 not have fit in that phrase, because there can't be a

4 contract evidencing a transaction engaged in commerce,

5 because a transaction cannot engage in commerce.

6 By the same token, in the section 1 exclusion it

7 would have made no sense to use the word, involving,

8 because workers aren't involving commerce. Now, perhaps

9 they're involved in --

10 QUESTION: They're engaged in businesses

11 involving commerce. Workers in businesses involving

12 commerce.

13 MR. RUBIN: Then that has --

14 QUESTION: I mean, it's so easy to do.

15 MR. RUBIN: It both adds more words, it does not

16 respond to the concerns of those --

17 QUESTION: If you're worried about adding words,

18 they could have ended it after workers and it would have

19 achieved the same result.

20 MR. RUBIN: It does not address the concerns of

21 those who were objecting, because it used the exact

22 language that they proposed.

23 There's one more phrase that I haven't

24 addressed, and that's the any other. I know Justice

25 Kennedy asked about the class, but the complete phrase is,

34

1 any other class of workers and, as this Court has stated

2 on several occasions, when Congress uses terms such as --

3 in fact, when it uses the language, any other, it means

4 exactly that, any other. That's as broad as it gets.

5 That is language without limitation, and instead

6 of saying, any other class of workers in transportation,

7 which is essentially what petitioner's argument would have

8 the Court read section 1 to mean, commerce was a defined

9 term of art. Section 1 itself defined commerce as,

10 interstate or foreign commerce, as broad as it gets. It

11 didn't say, commerce means transportation.

12 Petitioner would not only have the Court adopt

13 the illogical explanation that Congress excluded from this

14 bill those workers over whom its commerce power was the

15 clearest and federalize the law of arbitration only those

16 as to whom I believe Justice O'Connor said was most

17 questionable --

18 QUESTION: Mr. Rubin, there's also the phrase,

19 contract of employment. You were candid in telling us

20 that you consider workers to include any employee, even

21 managerial employees. What about collective bargaining

22 contracts? Are they -- where do they stand as -- do they

23 fall within the section 1 exclusion?

24 MR. RUBIN: Yes, and in fact the majority of the

25 circuits agree with the proposition that collective

35

1 bargaining agreements are excluded. Various amici have

2 totalled up, I think 5 to 3, but yes, collective

3 bargaining agreements --

4 QUESTION: How was that consistent with -- we're

5 told that the Ninth Circuit is the only one that holds

6 that all employment contracts are out under section 1,

7 but --

8 MR. RUBIN: I believe the more accurate

9 statement would be that those circuits that focused solely

10 on individual employment contracts drew that distinction,

11 because in fact, going back to 20, 25 years, the majority

12 of the circuits have said the collective bargaining

13 agreements are excluded.

14 The practical effect is minimal, because the

15 Labor Management Relations Act, Section 301, as this Court

16 clearly held in Lincoln Mills v. Textile Workers, does

17 ensure the Federal common law of arbitrability for

18 collective bargaining agreements.

19 QUESTION: What was the reasoning in the

20 circuits for saying that collective bargaining contracts

21 are excluded? Is it that they were not contracts of

22 employment?

23 MR. RUBIN: No, no, no. It's precisely the

24 opposite, because they were contracts of employment of any

25 other class of workers.

36

1 QUESTION: And some of the examples involve

2 collective bargaining agreements outside of the

3 transportation industry.

4 MR. RUBIN: Yes. Yes.

5 QUESTION: But why wouldn't those courts have

6 said that the National Labor Relations Act is just a

7 superseding statute?

8 MR. RUBIN: The National -- the -- section 301

9 of the LMRA is a different statute.

10 QUESTION: Or, LMRA, yes.

11 MR. RUBIN: Is a -- well, this Court in Lincoln

12 Mills was faced with a choice as to whether, in deciding

13 to hold collective bargaining agreement arbitration

14 provisions enforceable, it should do so under the FAA, as

15 the lower court had held, by the way, in the Fifth Circuit

16 in Lincoln Mills, or whether to hold it enforceable under

17 section 301, which was enacted in 1947.

18 The Court chose section 301. The Court made no

19 reference whatsoever in its opinion to the FAA, and that's

20 where Justice Frankfurter in his dissent first laid out

21 the argument that we're following up on in our briefs to

22 say that the FAA is inapplicable for this --

23 QUESTION: Why doesn't the 301 reasoning explain

24 what the circuits have done and say, well, these are just

25 controlled by another statute?

37

1 MR. RUBIN: The circuits who have drawn that

2 distinction have not relied on 301. Sometimes the cases

3 arise in the question of which statute of limitations

4 applies, whether you borrow the Federal Arbitration Act

5 statute of limitations or not, but that hasn't been the

6 distinguishing characteristic and, of course, this case

7 not being a collective bargaining agreement, certainly

8 LMRA section 301 does not apply to this case.

9 QUESTION: Is it true that all the other

10 circuits but the Ninth have restricted this to

11 transportation workers?

12 MR. RUBIN: No. Some have, as we pointed out,

13 restricted it to employees of common carriers.

14 QUESTION: Well, all right, but I mean,

15 restricted it, then it can't be that there are a lot of

16 circuits that have held that collective bargaining

17 agreements are excluded as a contract of other workers.

18 MR. RUBIN: Well, there are --

19 QUESTION: All right.

20 MR. RUBIN: I think the First, Fourth, Fifth,

21 Sixth, and Tenth have -- and the Ninth.

22 QUESTION: I don't see the consistency there,

23 but I need -- that isn't your problem at the moment, nor

24 mine.

25 The question I have is the same I addressed to

38

1 your brother over -- as I understand it -- this is 75

2 years ago.

3 MR. RUBIN: Yes.

4 QUESTION: It's an old statute.

5 MR. RUBIN: Yes.

6 QUESTION: And it's possible the language is

7 open and, given that possibility, I'd like to know what

8 the consequence is. As far as I understand it, when I'm

9 focusing on workers -- and I believe there still is

10 hostility to arbitration in the States, and I also think

11 that there are a lot of unfair arbitration agreements, but

12 there are even more that are fair and many of them help

13 the average worker, maybe not your client.

14 All right. Given that background, who's going

15 to be left out in the cold? Are there a class of workers

16 such that if we accept the Ninth Circuit they will

17 suddenly not be able to get arbitration agreements that

18 might help them because of State hostility or complex

19 State rules, et cetera?

20 MR. RUBIN: No.

21 QUESTION: Can the NLRA, NLRB take jurisdiction

22 over such a class?

23 MR. RUBIN: There --

24 QUESTION: Is there a problem?

25 MR. RUBIN: There are several levels of

39

1 responses, but I think to address what I understand your

2 concern to be, workers and employers can always enter into

3 voluntary arbitration agreements. They can always decide

4 between themselves after a dispute arises, for example,

5 that they choose to pursue an arbitration mechanism rather

6 than to go into court.

7 If they agree to arbitrate, there is no problem.

8 It's not like the old common law hostility to arbitration.

9 There's no question that it would be enforceable.

10 QUESTION: Your response is, then, look, they

11 can still agree, just not in the employment contract.

12 MR. RUBIN: They -- in a few -- the ultimate

13 issue here is whether States can determine whether the

14 employment relationships in those States, whether an

15 arbitration agreement is enforceable or not.

16 QUESTION: Well, you're going to be --

17 MR. RUBIN: In those --

18 QUESTION: You're going to be arbitrating under

19 the kind of agreements you describe simply between the --

20 either under State law or under Federal law, aren't you?

21 I mean, there's no other way to do it.

22 MR. RUBIN: If someone is to go to court --

23 QUESTION: Yes.

24 MR. RUBIN: -- to enforce an arbitration

25 agreement that one side is objecting to --

40

1 QUESTION: Right.

2 MR. RUBIN: Yes. It's either the State law or

3 the Federal law that will apply in this case determines

4 whether --

5 QUESTION: Mr. Rubin, your argument assumes that

6 giving a broader modern meaning to section 2 and giving a

7 broader modern meaning to section 1 are one and the same

8 things.

9 I really don't think that that's what's going on

10 here. I mean, what you're really asking us to do is to

11 change the language of section 1 in light of the fact that

12 we now know that Congress could have gone further than it

13 chose to go in that language. I don't know any other case

14 where we've done that.

15 You're not asking us to simply give that

16 language its modern, more expansive meaning. You're

17 asking us to say, you know, in light of the fact that we

18 now know that it's not just employees engaged in

19 interstate commerce who can be covered. Had Congress

20 known that then, they would have written a different

21 provision and so, Supreme Court, why don't you rewrite it

22 for Congress, because they surely would have put it this

23 way if they had known then what we know now. Do you know

24 any case where we've done that?

25 MR. RUBIN: I'm not asking you to rewrite the

41

1 language, Justice Scalia. I'm asking you to accept that

2 Congress in 1925 saw a symmetry, saw an objection,

3 responded to it by making sure that any worker that might

4 be -- if there were any worker out there whose contract of

5 employment evidenced a transaction involving commerce,

6 they would be taken out of the act completely.

7 QUESTION: You're saying they saw a symmetry

8 which now no longer exists because we've given the first

9 part a much broader meaning, and now this other part,

10 which they once thought was symmetrical, is no longer

11 symmetrical, so now we should read it to mean something

12 more --

13 MR. RUBIN: To --

14 QUESTION: -- than a class of workers engaged in

15 foreign or interstate commerce.

16 MR. RUBIN: To get back to the very first

17 question you asked petitioner's counsel, what did Congress

18 mean by the language used in 1925. Involving, which had

19 never been used before in a commerce relationship and has

20 never been used since, could not have meant anything more

21 than engaged in, because engaged in was as far as it got.

22 So to the extent there has been a rewriting --

23 and I'm not contending there's been a rewriting. I'm

24 contending there's been an application under the modern

25 interpretation of the Commerce Clause. As this Court in

42

1 Terminex said, you have to look to see what Congress is

2 trying to achieve. What were the purposes? And when the

3 Court read, involved in --

4 QUESTION: Even when it doesn't achieve that by

5 reason of future changes, future changes in the law, or

6 future changes in circumstances. What you're asking us to

7 do is, in light of future changes in the law, make this

8 statute read the way Congress thought it was going to

9 operate when it was enacted, but we don't usually do that.

10 If, in fact, engaged in interstate commerce is something

11 narrower and is no longer symmetrical, tough luck.

12 Congress can amend it. But we don't go around rewriting

13 it in order to preserve symmetry.

14 QUESTION: Maybe your answer is, we've already

15 rewritten section 2.

16 MR. RUBIN: In fact, in Terminex in 1925,

17 that -- that's what happened. The language in 1925

18 maintained that symmetry, maintained that symmetry for

19 purposes that were stated that are in the record. There

20 is no indication of any reason why Congress would have

21 disrupted that symmetry, what purposes could be served,

22 how it could be --

23 QUESTION: But it isn't symmetry. I mean,

24 there's different language used in the two sections.

25 MR. RUBIN: It's symmetry, Your Honor, in the

43

1 sense that because some felt that the coverage language

2 might encompass workers' contracts of employment,

3 Congress, to the fullest extent it could, pulled those

4 workers out.

5 QUESTION: That's a very odd definition of

6 symmetry.

7 MR. RUBIN: Symmetry may not be the right word.

8 The concept is the word that I'm trying to convey to the

9 Court, and the concept is the concept of ensuring that no

10 contracts of employment that might be covered under

11 Congress' commerce power would be covered. One provision

12 should not be read dynamically, as this Court did in

13 Terminex, while the other is read statically. There's no

14 indication that Congress intended that.

15 Congress didn't use the word, transportation.

16 It had enacted numerous statutes by 1925 that had limited

17 the scope to transportation, or to common carriers, or to

18 common carriers by railroad. It had that language readily

19 available to it had it intended the carve-out, but there

20 is no gap between the section 2 coverage and the section 1

21 exclusion and, therefore, just as in 1925, all workers'

22 contracts of employment were excluded, any other class of

23 workers, the broadest possible language, so, too, we urge

24 the Court to construe the statute that way now.

25 If there are no further questions --

44

1 QUESTION: Thank you, Mr. Rubin.

2 MR. RUBIN: Thank you.

3 QUESTION: Mr. Nagle, you have 2 minutes

4 remaining.

5 REBUTTAL ARGUMENT OF DAVID E. NAGLE

6 ON BEHALF OF THE PETITIONER

7 MR. NAGLE: Thank you. Very briefly, first,

8 with respect to the particular questions that have arisen

9 regarding our citation of Behrens, I would ask the Court

10 to look at the sections on pages 7 and 8 of our reply

11 brief, where we specifically tried to address that the

12 1925 Congress that had used the words, engaging in

13 interstate commerce, that -- I'm sorry, with respect to

14 Behrens, had indicated that that applied only to employees

15 who were actually engaged in interstate transportation or

16 closely related functions, and not to other employees that

17 Congress had the constitutional authority to regulate.

18 QUESTION: You cite Behrens -- you cite -- never

19 mind. Go ahead.

20 MR. NAGLE: Yes, Your Honor. With respect to

21 the questions on section 301 of the Labor Management

22 Relations Act, that, of course, affects those in the

23 unionized context. I would note, as Justice Scalia had

24 pointed out, that this would lead to the anomalous result

25 that a CEO of a multinational corporation who has an

45

1 arbitration provision in his or her employment contract,

2 that it would not be enforceable pursuant to the FAA.

3 I would note that in Prima Paint, at note 7, the

4 Court made reference -- albeit it in dicta the Court made

5 reference to certain kinds of employment contracts being

6 excluded under section 1, which is consistent with our

7 view that it was not intended to cover the entire range of

8 that which was covered.

9 Ultimately, I would suggest that as the court of

10 appeals have consistently held, the narrow reading of

11 section 1 is the only reason which is based on and

12 consistent with the text, that makes use of the full text

13 and conforms with the principles of statutory

14 construction, so that we don't read words to be

15 meaningless and that we do apply the canon of ejusdem

16 generis.

17 As this Court noted in Allied-Bruce, and

18 particularly in Justice O'Connor's concurring opinion

19 there, there's value in uniformity and stability of the

20 case law which has developed. Since Gilmer, untold number

21 of agreements to arbitrate employment claims have been

22 entered into in reliance, and I would suggest that

23 Congress is certainly well aware of this case law

24 development, has had the opportunity to correct it if they

25 thought the Court had gotten it wrong, and they have

46

1 declined to do so.

2 If there are no further questions --

3 CHIEF JUSTICE REHNQUIST: Thank you, Mr. Nagle.

4 The case is submitted.

5 (Whereupon, at 11:02 a.m. the case in the above-

6 entitled matter was submitted.)

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