Robert E. Lavender on Contract Enforcement
From Judgepedia
In the case of Bilbrey v. Cingular Wireless, L.L.C. (2007) Justice Lavender concurred in the majority opinion of Justice James Winchester, which invalidated a clause in a contract between defendant, a cellular phone provider, and plaintiff, a customer who entered into a contract with defendant.
ISSUES:
In this case, the court considered whether an arbitration clause in contract for cell phone services was unconscionable because the plaintiff/customer was under duress when he entered into the agreement.
HOLDING:
The court found that an arbitration clause in a cellular phone services agreement was unconscionable, and invalid, because the plaintiff/customer had an absence of meaningful choice when he entered into the agreement for cell phone services.
REASONING:
In arriving at that decision, the court reasoned as follows:
- (1) The plaintiff/customer had an absence of meaningful choice because "[h]e needed to replace his cell phone, which had been stolen," and because "clearly [the plaintiff] did not know the implications of * * * the contract."
POTENTIAL FLAWS IN THE COURT'S REASONING:
For a discussion of potential flaws in the court's reasoning see this link to the Discussion page or click on the Discussion tab at the top of this page.
In the case of Edmondson v. Pearce (2004) Justice Lavender concurred in the majority opinion concluding that the state's newly enacted prohibition on cock-fighting did not, amongst other things, constitute a regulatory taking of private property without compensation, or an unlawful interference with the contractual rights of those involved in cockfighting
ISSUES:
In this case, the court considered whether (1) prohibiting the use of birds for fighting purposes constituted a regulatory taking or damaging of the plaintiffs' property for public use without just compensation; and (2) the act unconstitutionally infringed upon the contractual rights of the plaintiffs by taking immediate effect and nullifying contracts surrounding cockfighting.
HOLDING:
As to regulatory takings challenge, the Court held that the mere outlawing of one use of game-birds, that being fighting, was not sufficient to constitute a regulatory taking of those birds worthy of compensation; (2) the prohibition against using birds for cockfighting is a reasonable and proper use of the police power even though it substantially reduced the value of game-fowl or accompanying property used in cockfighting and had the effect of prohibiting that property's most beneficial use.
As to the impairment of contracts challenge, the Court held that "it is simply not a reasonable expectancy that an existent contract at the time of passage of this Act, which contains terms extending into the future concerning the use or sale of game fowl or gamecocks, would be immune from being overriden by valid police power regulation outlawing or prohibiting cockfighting.
REASONING:
In arriving at that decision, the court reasoned as follows:
- (1) "The prohibition against using birds for fighting purposes is a reasonable and proper exercise of the police power by the electorate acting in its legislative capacity to promote public morals and to ban an activity deemed injurious thereto, rather than a regulatory taking * * *."
- (2) "At a minimum, the Act serves the significant and legitimate public purpose of preventing cruelty to animals and prohibiting human involvement in bird fighting, obviously out of compassion for avian creatures."
- (3) Property interests in game-fowl cannot be said to be entirely legitimate property interests because "[A]bout 40 years ago, our own Court of Criminal Appeals foreshadowed the potential for specifically outlawing cockfighting [because that Court indicated that cockfighting could someday be oulawed]." "[W]e have serious doubts as to whether- given this Oklahoma perspective- the use of birds for fighting, could ever be considered an identifiable property interest subject to protection."
- (4) A second purpose in addition to the prevention of animal cruelty has, thus, seemed to have been recognized for quite some time: to wit, safeguarding the public welfare by protecting our populace against the debasing and brutalizing effects upon those who witness such events.
- (5) "Suffice it so say that government regulation- by definition- involves the adjustment of rights for the public good. Often this adjustment curtails some potential for the use or economic exploitation of private property. To require compensation in all such circumstances would effectively compel the government to regulate by purchase."
- (6) The "denial of one traditional property right does not always amount to a taking. At least where an owner possesses a full bundle of property rights, the destruction of one strand of the bundles is not a taking, because the aggregate must be viewed in its entirety."
- (7) "[L]oss of future profits * * * provides a slender reed upon which to rest a takings claim."
- (8) "[T]he Court has sustained regulations prohibiting the sale of alcoholic beverages despite the fact that individuals were left with previously acquired stocks."
- (9) "[I]t could not reasonably be expected by respondents or anyone else that cockfighting, simply, simply because it was lawful prior to the Act's passage, would always remain so. * * * criminal statutes prohibiting cruelty to animals or instigating fights between animals have been part of Oklahoma since at least the early 20th Century."
- (10) "The Court of Criminal Appeals expressly presaged the potential for future prohibition of [cockfighting] by legislative action."
POTENTIAL FLAWS IN THE COURT'S REASONING:
For a discussion of potential flaws in the court's reasoning see this link to the Discussion page or click on the Discussion tab at the top of this page.
