|Allied-Bruce Terminix Cos. v. Dobson (93-1001), 513 U.S. 265 (1995). |
[ O'Connor ]
[ Scalia ]
[ Thomas ]
[ Breyer ]
ALLIED BRUCE TERMINIX COMPANIES, INC., and TERMINIX INTERNATIONAL
COMPANY, PETITIONERS v. G. MICHAEL DOBSON et
on writ of certiorari to the supreme court of alabama
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 retroactively 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.