arbitration of Shelley v. Kraemer

[Steven Jamar]

Yes.  State action gets messy.  But, the question was about racial
discrimination in land transactions through covenants that run with
the land.  And the supreme court thought there was sufficient state
action.

I question whether the current court would reach the same result today
in today's anti-federal environment and ignoring of on-the-ground
reailities in making race-based decisions.

Indeed, I suspect that this court would rule on Shelley 5-4 with
Kennedy being a bit of a wild card.

But, the question was about Shelley in the time of Shelley with the
arbitration clause tossed on top of it.

Steve


On 10/14/07, Robert Sheridan <rs at robertsheridan.com> wrote:
> It's important to note, in addition and however, that not all resort
> to state law having a discriminatory effect necessarily suffices to
> establish state action.  Moose Lodge #107 v. Irvis permitted racially
> discriminatory practices in private associations despite the
> existence of a state ABC license which supported the activity, and
> Flagg Brothers, Inc. (a storage warehouse for furniture) v. Brooks,
> found nothing unconstitutional about state law permitting the sale of
> stored furniture w/o notice and a hearing, for failure to pay rent/
> storage, where poor people were more disadvantaged than the more
> wealthy who, presumably, were in a better condition not to suffer
> this fate...
>
> rs
> sfls
>
>
> On Oct 14, 2007, at 7:44 PM, Steven Jamar wrote:
>
> > 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
> >
>
>


-- 
Prof. Steven Jamar
Howard University School of Law