arbitration of Shelley v. Kraemer

Steven Jamar stevenjamar at gmail.com
Sun Oct 14 19:44:57 PDT 2007


Even if the arbitration were to be done, the only way to enforce the
arbitration would be to take it to court -- and then enforcing the
arbitration agreement which would be enforcing the restrictive
covenant would certainly be state action just as much as directly
enforcing the restrictive covenant.

So, as Bob Sheridan points out, the arbitration clause at the time
would not have made a difference.  Remember, arbitration was not
favored in the courts at that time and I believe it was well before
the federal and most state arbitration acts and the standard of review
of arbitration awards was much broader than now.

Also, there is still an issue of whether the arbitrator can even
decide such a constitutional issue and in doing so immunize the
decision from court review.

Steve


On 10/14/07, Robert Sheridan <rs at robertsheridan.com> wrote:
> I sincerely doubt that a racially restrictive covenant which affected so
> many people and that depended on the state legal system for enforcement
> could, even in the late 1940s, be considered free of state action.  There
> are probably many examples, but two which come to mind, where a state
> legislative scheme taken as a whole was declared unconstitutional for one
> reason or another, include NYT v. Sullivan (state libel laws) and Campbell
> v. State Farm (Utah's punitive damages system).
>
> If those wishing to impose a racially restrictive deed covenant wanted to
> maximize their chances of enforcing it, or seeing that it would be obeyed by
> making it more expensive and time consuming to contest, they wouldn't do so
> by creating a mechanism for allowing challengers to do so more quickly and
> less expensively by requiring arbitration first, allegedly to avoid state
> action.  Regardless of the procedural mechanism, resorting to arbitration or
> judicial proceeding, the practice was subject to the same challenge, that
> the racial restriction survived only because the state allowed it in
> violation of evolving notions of equal protection of law, at least as I see
> it.
>
> ADR (arbitration, mediation, often private, often court-ordered) is a recent
> phenomenon, not widespread then.  What was widespread then was, in some
> circles at least, that we'd fought Hitler's racial policies but were
> treating returning servicemen and their families as second-class citizens on
> account of their race.  The irony was too much to stomach, for a good number
> of people, enough to keep the fermentation going, which boiled over into
> what we call the Civil Rights movement, often thought of as unique to the
> '60s, but which began long before that, very long.
>
> Bob
>
>
> On Oct 14, 2007, at 3:47 PM, Edward Still wrote:
>  Robert,
>
>  But in Shelley, someone did go to court: "On October 9, 1945, respondents,
> as owners of other property subject to the terms of the restrictive
> covenant, brought suit in Circuit Court of the city of St. Louis prarying
> that petitioners Shelley be restrained from taking possession of the
> property and that judgment be entered divesting title out of petitioners
> Shelley and revesting title in the immediate grantor or in such other person
> as the court should direct."
>
>  My point was this: if there was an arbitration agreement imbedded in the
> convenant, would that have avoided the "state action" question?
>
>  Ed
>
>  At 05:23 PM 10/14/2007, Robert Sheridan wrote:
>
> Deed restrictions were bullet-proof, I believe, accounting for why it took
> the Court to strike them down.  They were used not to engage in some
> gentlemanly game of "Why don't we let some neutral arbitrator decide our
> little dispute over what is reasonable?" but to keep people in their place,
> reasonable, fair, equitable, or not.  No blacks, no Jews, no asians, etc.,
> need reply.  To protect property values, of course, from people on this
> list.  Where anyone might think that a truly neutral arbitrator was going to
> be available to render equal justice is a fascinating question.
>
>  rs
>  sfls
>
>
>  On Oct 14, 2007, at 2:33 PM, Edward Still wrote:
>
>
> I was just preparing again to teach Shelley v. Kraemer, and a thought struck
> me.  If the covenant had provided for private arbitration of any claims
> under it, would the Shelley family have ever been able to vindicate their
> constitutional rights?  Any thoughts on this?
>
>
>  Edward Still
>  attorney & mediator
>  Suite 201
>  2112 11th Avenue South
>  Birmingham AL 35205
>    phone 205-320-2882
>    fax toll free 1-877-264-5513
>    still at votelaw.com
>    http://www.EdwardStill.com
>    http://www.votelaw.com/blog
>
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-- 
Prof. Steven Jamar
Howard University School of Law


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