PHILIPPE CALDERON, on behalf of themselves and all others similarly situated, ANCIZAR MARIN, on behalf of themselves and all others similarly situated, Plaintiffs - Appellees, versus SIXT RENT A CAR, LLC, Defendant - Appellant, SIXT FRANCHISE USA, LLC, Defendant.
No. 20-10989
United States Court of Appeals, Eleventh Circuit
(July 14, 2021)
[PUBLISH] D.C. Docket No. 0:19-cv-62408-AHS Appeal from the United States District Court for the Southern District of Florida
Before JILL PRYOR, NEWSOM, and MARCUS, Circuit Judges.
NEWSOM, Circuit Judge, delivered the opinion of the Court, in which MARCUS, Circuit Judge, joined, and JILL PRYOR, Circuit Judge, joined in Parts I and II.
JILL PRYOR, Circuit Judge, filed a concurring opinion.
NEWSOM, Circuit Judge:
A customer making an airline, hotel, or car-rental reservation on Orbitz.com agrees to a contract that includes an arbitration provision. That provision requires the customer to arbitrate disputes related to, among other things, “any services or
I
Ancizar Marin used Orbitz.com to book a rental car from Sixt. Toward the end of his reservation process with Orbitz, Marin clicked on a big “Reserve Now” button immediately below a statement that said, “By selecting to complete this booking I acknowledge that I have read and accept the . . . Terms of Use.” The words “Terms of Use” were accompanied by a hyperlink prompting Marin to read and accept them. Marin clicked “Reserve Now,” indicating that he agreed to Orbitz‘s Terms of Use.
Orbitz‘s Terms of Use, which describe themselves as “constitut[ing] the entire agreement between [the customer] and Orbitz,” contain a provision that mandates arbitration of certain disputes. This case turns on the meaning of that arbitration provision—and in particular its use of the word “Claims.” The arbitration provision says that—
Any and all Claims will be resolved by binding arbitration, rather than in court . . . . This includes any Claims you assert against us, our subsidiaries, travel suppliers or any companies offering products or services through us, including Suppliers, (which are the beneficiaries of this arbitration agreement).
The arbitration provision thus applies only to capital-C “Claims,” which, importantly, the Terms of Use define as follows:
[A]ny disputes or claims relating in any way to [1] the Services, [2] any dealings with our customer service agents, [3] any services or products provided, [4] any representations made by us, or [5] our Privacy Policy.
Among the five categories of activities listed in the definition, this case centers on the third—“any services or products provided.”
The Terms of Use also include several other provisions relevant to this case. First, the Terms of Use define capital-S “Services“—the first of the five “Claim[]” categories—to mean “the Web sites, mobile applications, call center agents, and other products and services provided by Orbitz, including any Content,” and not “products or services that are provided by third parties.” Second, the Terms of Use provide that, whenever a customer asserts a “Claim[],” he must “give [Orbitz] an opportunity to resolve” it “by contacting ‘Orbitz Legal: Arbitration Claim Manager‘” and then waiting 60 days before proceeding. And third, the Terms of Use explain that the “use” of “products or services that are provided by third parties, and that are available through a link from the Services . . . is subject to the terms set forth by their respective owners or operations.”
Marin had no complaints about any of his interactions with Orbitz, which by all accounts went smoothly. A few weeks after securing his reservation through Orbitz, Marin picked up his car from Sixt. When he did so, Marin signed an entirely separate agreement with Sixt—which, notably, didn‘t contain an arbitration provision. Marin
Marin sued Sixt in federal court on behalf of a putative class of Sixt customers. Marin alleged that Sixt breached its own contract with him and violated two state consumer-protection statutes. He didn‘t sue Orbitz, nor did he complain of any wrongdoing by Orbitz or allege any violation of Orbitz‘s Terms of Use by anyone. His complaint mentioned Orbitz just once, in passing.
Sixt moved to compel arbitration of Marin‘s lawsuit. It didn‘t invoke its own contract—there being no arbitration provision in its contract to invoke—but rather Orbitz‘s Terms of Use. Sixt argued that when Marin accepted Orbitz‘s Terms of Use at the reservation stage, he agreed to arbitrate actions against Sixt concerning damage fees that it had imposed.
The district court denied Sixt‘s motion. The court held that Marin‘s lawsuit fell outside of the scope of the arbitration provision because the suit concerned Sixt‘s practices, not Orbitz‘s. Alternatively, it determined that Sixt had no authority to enforce the arbitration provision because it wasn‘t a third-party beneficiary of Orbitz‘s Terms of Use and didn‘t meet the conditions for equitable estoppel.
Sixt appealed the denial of its motion to compel arbitration.1
II
A
The parties agree that Florida law governs our interpretation of Orbitz‘s contract. Under Florida law, the meaning of an arbitration provision is a “matter of contractual interpretation” and thus turns on the “intent of the parties to [the] contract, as manifested in the plain language of the arbitration provision and contract itself.” Jackson v. Shakespeare Found., Inc., 108 So. 3d 587, 593 (Fla. 2013).
Accordingly, we turn to the text of the arbitration provision in Orbitz‘s Terms of Use. Again, that provision says that—
Any and all Claims will be resolved by binding arbitration, rather than in court . . . . This includes any Claims you assert against us, our subsidiaries, travel suppliers or any companies offering products or services through us, including Suppliers, (which are the beneficiaries of this arbitration agreement).
For our purposes, the key term in the arbitration provision is “Claims.” The provision requires arbitration of “[a]ny and all Claims.” So, on the one hand, if Marin‘s suit doesn‘t constitute a “Claim[],” then the provision doesn‘t compel arbitration here. On the other hand, if Marin‘s suit constitutes a “Claim[],” the provision does require arbitration here because the other preconditions are clearly satisfied—Sixt, as a company providing rental-car services through Orbitz, is
either (or both) a “travel supplier[]” or a “compan[y] offering products or services through” Orbitz.
Because arbitrability turns entirely on whether Marin‘s suit constitutes a “Claim[],” we train our attention to the meaning of that word. The Terms of Use define “Claims” as follows:
[A]ny disputes or claims relating in any way to
[1] the Services,
[2] any dealings with our customer service agents,
[3] any services or products provided,
[4] any representations made by us, or
[5] our Privacy Policy.
Our analysis will focus on the definition‘s third clause—“any services or products provided.” Sixt‘s rental-car service, which gave rise to this dispute, doesn‘t fall within any of the other four “Claim[]” categories: Category (1), capital-S “Services,” which (as already explained) are defined to mean Orbitz‘s own services; Category (2), “dealings with our [i.e., Orbitz‘s own] customer service agents“; Category (4), “representations made by us [i.e., Orbitz]“; or Category (5), “our [i.e., Orbitz‘s own] Privacy Policy.” Sixt contends, though, that its rental-car service fits squarely within Category (3)—“any services or products provided.”
B
We disagree. Although its meaning is not perfectly pellucid or free from all doubt, we conclude that the phrase “any services or products provided” refers to services or products provided by Orbitz, not services or products by anyone. Accordingly, Sixt‘s rental-car service doesn‘t fall within the category of arbitrable “Claims.”
We come to that conclusion for three principal reasons.
1
First, the other items in the series that includes the phrase “any services or products provided” indicate that it refers to services or products provided by Orbitz. Florida courts recognize the familiar rule of contract interpretation that “the meaning of particular terms may be ascertained by reference to other closely associated words.” City of Homestead v. Johnson, 760 So. 2d 80, 84 (Fla. 2000). Cf. Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 195 (2012) (“When several nouns or verbs or adjectives or adverbs—any words—are associated in a context suggesting that the words have something in common, they should be assigned a permissible meaning that makes them similar.“). As just explained, the Terms of Use define “Claims” as disputes relating to five categories of activity. The other four categories all indisputably describe spheres of Orbitz‘s own activities: (1) “Services,” contractually defined as
a range of things done “by Orbitz” and not “by third parties“; (2) “any dealings with our customer service agents,” which means Orbitz‘s own agents; (4) “any representations made by us,” which means made by Orbitz; and (5) “our Privacy Policy,” which means Orbitz‘s privacy policy.
Given the close spatial and conceptual relationship among Categories (1), (2), (4), and (5)—as describing spheres of Orbitz‘s own activities—it would be odd if Category (3) referred to a massive and seemingly boundless set of activity—Sixt calls it “unlimited“—encompassing services or products provided by anyone. That category—especially sandwiched as it is between two Orbitz-related items on one side and two Orbitz-related items on the other—reads more naturally as referring to another sphere of Orbitz‘s own activities, namely, its own “services or products.”
Second, two other provisions in Orbitz‘s Terms of Use strongly indicate that the term “Claims” doesn‘t refer to “services or products provided” by anyone, but rather to those provided by Orbitz. The first requires that any customer asserting a “Claim[]” must “give [Orbitz] an opportunity to resolve” it “by contracting ‘Orbitz Legal: Arbitration Claim Manager‘” and then waiting 60 days before instituting further proceedings. Were we to accept Sixt‘s definition of “Claims” as including disputes
unrelated to Orbitz had to route their litigation through Orbitz‘s legal department. It would mean that Marin himself was obligated to route this lawsuit through Orbitz‘s legal department, even though Orbitz has no discernible interest in it and no authority to resolve it. (What would Orbitz‘s “Arbitration Claim Manager” do with 60 days to contemplate a claim about another company‘s damage fees?) Indeed, it would presumably mean that we would have to dismiss Marin‘s suit for his failure to comply with this pre-suit contractual obligation. Tellingly, Sixt hasn‘t asked us to do that—likely because it seems so bizarre. But we think that would be the unavoidable consequence of Sixt‘s boundless definition of the term “Claims.”
The other relevant provision states that the “use” of “products or services that are provided by third parties, and that are available through a link from the Services . . . is subject to the terms set forth by their respective owners or operations.” That provision indicates that, at least at some level, the Terms of Use conceive of the customer‘s relationship with third-party services—like Sixt‘s rental-car service—as being governed by the separate contracts that those third parties make, not by Orbitz‘s Terms of Use.
Finally, there is common sense. Recall that Orbitz‘s Terms of Use mandate arbitration of “Claims” against, among other entities, “travel suppliers” and “any companies offering products or services through” Orbitz. Were we to accept Sixt‘s
definition of “Claims” as including disputes relating to “services or products provided” by anyone, then a staggering range of lawsuits that don‘t concern Orbitz would be subject to Orbitz‘s mandatory claim-processing and arbitration rules. On Sixt‘s reading, every customer who signed Orbitz‘s Terms of Use would have agreed to arbitrate every dispute it ever had with any “travel supplier[]” or any “compan[y] offering products or services through” Orbitz, regardless of whether the customer booked his reservations with that entity through Orbitz.
Imagine, for instance, that after signing Orbitz‘s Terms of Use and renting his car from Sixt, Marin drove to some faraway city, physically walked into a hotel, and asked the front-desk clerk for a room. Upon arrival, he signed the hotel‘s one-page contract, which contained no arbitration provision. Days later, the hotel evicted him because of his race, so he sued the hotel in federal court under Title II of the Civil Rights Act of 1964. Under Sixt‘s interpretation, Marin‘s lawsuit against the hotel would be subject to mandatory arbitration. The hotel is undoubtedly a “travel supplier” because hotel rooms are travel-related amenities. And assuming that the hotel—like most others—lists rooms on Orbitz.com, then it would also be a “compan[y] offering products or services through” Orbitz. And according to Sixt, Marin‘s lawsuit would qualify as a “Claim[]” for the simple reason that it related to someone‘s (i.e., the hotel‘s) provision of services or products—even though Marin hadn‘t used Orbitz to book the room. By
interpreting the phrase “services or products provided” to refer only to those provided by Orbitz, our interpretation avoids that extreme and unlikely implication. Cf. James v. Gulf Life Ins. Co., 66 So. 2d 62, 63–64 (Fla. 1953) (“The inconvenience, hardship, or absurdity of one interpretation of a contract . . . is weighty evidence that such meaning was not intended when the language is open to an interpretation which is neither absurd nor
2
In response, Sixt asserts that our interpretation renders parts of the arbitration provision meaningless. As just noted, the provision mandates arbitration of “Claims” brought not only against Orbitz, but also against third parties such as “travel suppliers” and “companies offering products or services through” Orbitz. Sixt insists that if the phrase “services or products provided” is read to refer only to Orbitz‘s own services and products, then the arbitration provision‘s references to third parties have no effect—because, Sixt says, there‘s no such thing as a suit against a third party concerning Orbitz‘s own activities.
But it‘s not an empty set. We can envision circumstances in which such suits could arise, and we can understand why Orbitz might want to require arbitration of them. For instance, if a customer booked an international flight on
Orbitz.com and then showed up at the airport only to be told that the airline had no record of his reservation, he might well sue the airline. But his suit could relate, as well, to Orbitz‘s own activities that facilitated the airline reservation—if, say, he sought redress for something that went wrong in Orbitz‘s communications with the carrier. Because such a suit, although brought against a third party, would relate to Orbitz‘s own activities, it would be an arbitrable “Claim[]” under our interpretation. And Orbitz would have good reason to want to maintain some degree of involvement in such a suit because it could implicate its practices, subject it to discovery requests and subpoenas, or lead to its own downstream liability. So it‘s not true that the agreement‘s references to third-party defendants makes no sense and has no independent bite under our interpretation.
Sixt also contests our interpretation on the ground that it creates redundancy. We acknowledge that if, as we hold, the phrase “services or products provided” refers only to those provided by Orbitz, it basically duplicates the term “Services,” which, as already explained, is contractually defined to refer to a variety of “products and services provided by Orbitz.” But we also note that some redundancy is inevitable. Were we to accept Sixt‘s definition of the phrase “services or products provided” as referring to those provided by anyone, then it would swallow and subsume the category of “Services.” After all, every “product[] and service[] provided by Orbitz” is also a “product[ or] and service[]”
provided by someone. The arguments from redundancy, therefore, are at worst a wash and, in any event, are hardly dispositive.3
III
A
In an attempt to overcome that most natural reading, Sixt invokes the canon of construction that “any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24–25 (1983). If the Moses H. Cone canon applied, it would no doubt bolster Sixt‘s position. But we don‘t think it applies.
Moses H. Cone‘s strong pro-arbitration canon emanates from the Federal Arbitration Act and thus applies only to “arbitration agreement[s] within the coverage of the Act.” Id. at 24. In order to invoke the canon, then, a party must show that the FAA governs the arbitration agreement at issue. The Act governs an arbitration agreement only to the extent that it compels arbitration of “controvers[ies]” that “aris[e] out of” the “contract” containing the arbitration agreement or the “transaction” evidenced thereby.
As we have explained in the course of interpreting similar language in an arbitration provision itself—rather than, as here, a statute governing a certain subset of arbitration provisions—the term “arising out of” is “broad, but it is not all encompassing.” Doe v. Princess Cruise Lines, Ltd., 657 F.3d 1204, 1218 (11th Cir. 2011). A dispute “does not arise out of or in connection with a contract” for the purposes of arbitration “just because the dispute would not have arisen if the contract
governs such contracts. Accordingly, Moses H. Cone‘s pro-arbitration canon of construction applies here only if Marin‘s lawsuit against Sixt was an immediate, foreseeable result of the performance of his accepting Orbitz‘s Terms of Use.
We conclude that it wasn‘t. Marin‘s lawsuit alleges that Sixt breached its own contract and violated two state consumer-protection statutes. The complaint doesn‘t name Orbitz as a defendant, identify any wrongdoing by Orbitz, or allege any violation of Orbitz‘s Terms of Use by anyone. In fact, it mentions Orbitz only once, and there only in passing. The relationship between Marin‘s lawsuit against Sixt and Orbitz‘s Terms of Use is even more attenuated than the relationship between the lawsuit and the related contract in Seaboard, in which we held that the lawsuit did not arise out of that contract. See 690 F.2d 1343.
Sixt has provided no authority for the proposition that Moses H. Cone‘s pro-arbitration canon applies to claims so tangentially related to the underlying contract. In fairness, the question has rarely come up. But we are persuaded by Judge O‘Scannlain‘s analysis of the issue in his concurring opinion in Revitch v. DIRECTV, LLC, 977 F.3d 713 (9th Cir. 2020). Although “the ‘arising out of’ language in § 2 has generated little judicial attention,” he explained there, it confines the FAA‘s application to the arbitration of controversies with a sufficiently close “relationship” to the underlying contract. See id. at 722 (O‘Scannlain, J., concurring). Accordingly, he reasoned that the Act didn‘t apply
to the dispute before him, which pitted a customer against a satellite-television company that was a distant affiliate of the wireless service company with whom the customer agreed to arbitrate disputes. See id. at 722–24; see also David Horton, Infinite Arbitration Clauses, 168 U. Pa. L. Rev. 633, 643, 678–80 (2020) (explaining that the FAA‘s “arising out of” language means that it applies only when the dispute has a sufficient “nexus” to the underlying contract and that the drafters of the Act consciously adopted this narrowing language); Recent Case, Revitch v. DIRECTV, LLC, 977 F.3d 713 (9th Cir. 2020), 134 Harv. L. Rev. 2871, 2878 (2021) (observing that “Judge O‘Scannlain‘s revival of the FAA‘s ‘arising out of’ limitation may prove invaluable” because, among other reasons, it is “ground[ed] in statutory language” and “can coexist with the Court‘s zealously enforced command to resolve scope ambiguities in favor of arbitration, as it merely recognizes an outer limit to that scope“). For similar reasons, we hold that Marin‘s suit against Sixt does not “aris[e] out of” his contract with Orbitz
B
Sixt suggests as a backup that even if Moses H. Cone doesn‘t apply, Florida law embodies the same pro-arbitration interpretive rule. But while Florida law
recognizes that arbitration agreements are valid, enforceable, and irrevocable, Florida‘s courts haven‘t gone full-on Moses H. Cone.
To be sure, Florida courts “try to resolve . . . ambiguit[ies] in . . . arbitration provision[s] in favor of arbitration.” Jackson, 108 So. 3d at 593. But they typically both derive this rule from federal law and state it in weaker terms than the Supreme Court expressed it in Moses H. Cone. See, e.g., Seifert, 750 So. 2d at 641 (construing “ambiguity” in an arbitration provision against arbitration); Citigroup, Inc. v. Amodio, 894 So. 2d 296, 298 (Fla. Dist. Ct. App. 2005) (acknowledging the “federal policy” favoring arbitration but explaining that a court must “mak[e] its initial construction of an agreement to arbitrate” under “general state contract law“).6 Florida courts also emphasize that whether a dispute is subject to arbitration depends primarily on “the plain language of the arbitration provision and contract itself.” Jackson, 108 So. 3d at 593. And in similar contexts, they have expressed reluctance to employ substantive canons of construction in the face of mere doubts over meaning. To the contrary, Florida courts have said that they will first “resort to the ordinary rules of construction,” and only after exhausting those determine whether “genuine inconsistency, uncertainty, or ambiguity in meaning remains.” Excelsior Ins. Co. v. Pomona Park Bar & Package Store, 369 So. 2d 938, 942 (Fla. 1979).
We hold, therefore, that Sixt hasn‘t demonstrated that Florida law independently requires us to resolve “any doubts” about the scope of an arbitration provision in favor of arbitrability.
Accordingly, we adhere to what we believe to be the best, most ordinary, most sensible interpretation of the contract, under which the arbitration provision does not encompass Marin‘s lawsuit against Sixt.7
IV
To summarize: The phrase “any services or products provided” in Orbitz‘s Terms of Use doesn‘t refer to services or products provided by anyone, but rather only to those provided by Orbitz itself. It follows that this lawsuit doesn‘t qualify as a “Claim[]” under the Terms of Use and therefore isn‘t subject to the provision‘s arbitration mandate. The Moses H. Cone canon of construction doesn‘t change the outcome because Marin‘s dispute with Sixt didn‘t “aris[e] out of” Orbitz‘s Terms of Use. Accordingly, we AFFIRM the district
JILL PRYOR, Circuit Judge, concurring:
I concur in Parts I and II of the majority opinion. I do not join Part III because I find it unnecessary to decide whether the Moses H. Cone canon applies in this case. For the reasons explained by the majority opinion, I have no doubt that Marin’s claims against Sixt do not fall within the arbitration provision of the Orbitz agreement.
NEWSOM, Circuit Judge, concurring:
I suppose it goes without saying that I agree with the Court’s conclusions (1) that Orbitz’s Terms of Use didn’t require arbitration of Ancizar Marin’s lawsuit against Sixt Rent A Car and (2) that Moses H. Cone’s pro-arbitration canon of construction has no application here because Marin’s suit didn’t “aris[e] out of” the underlying contract within the meaning of the
In Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1 (1983), the Supreme Court held that contractual arbitration provisions should be broadly construed—in particular, that “any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration.” Id. at 24–25 (emphasis added). The Court purported to derive this strong presumption from the
I
First, some history. Before Congress enacted the
Over time, many came to see the judiciary’s antipathy for arbitration as “anomalous and unjust.” Berkovitz v. Arbib & Houlberg, 130 N.E. 288, 292 (N.Y. 1921) (Cardozo, J.). Congress enacted the
A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.
B
Wrong. Decades after Congress enacted the
1
First, a surprising number of courts pretty nakedly transplanted the canon from an altogether different statute.
At least initially,
Somewhere along the way, though, lower federal courts decided that
2
Second, and separately, many courts almost simultaneously developed the same pro-arbitration canon through an aggressively purposivist reading of the
B
Enter Moses H. Cone, in which the Supreme Court endorsed the pro-arbitration canon in the strongest possible terms. “
The Court has since doubled (and tripled, and quadrupled . . .) down on the Moses H. Cone canon. The
Lower federal courts and state supreme courts have since run with Moses H. Cone, understanding it to “require[ them] to construe arbitration clauses as broadly as possible,” Collins & Aikman Prod. Co. v. Bldg. Sys., Inc., 58 F.3d 16, 19 (2d Cir. 1995) (quotation marks omitted), and to “resolve any . . . uncertainties in favor of arbitration,” Old Republic Ins. Co. v. Lanier, 644 So. 2d 1258, 1260 (Ala. 1994). Some have gone so far as to hold that Moses H. Cone’s pro-arbitration canon “trumps” other interpretive rules—like, for instance, the old contra proferentem principle that ambiguities in a contract should be construed against the drafter. Kristian v. Comcast Corp., 446 F.3d 25, 62 (1st Cir. 2006); see also Hudson v. Conagra Poultry Co., 484 F.3d 496, 503 (8th Cir. 2007) (“[T]his common-law rule of construction would favor the [plaintiffs’] interpretation, but it cannot overcome the statutory rule of construction favoring arbitration as embodied by the
C
Three characteristics of the Moses H. Cone canon—which, as I said, has now thoroughly permeated American law and practice—warrant particular attention.
1
First, and perhaps most obviously, the Moses H. Cone rule is a “substantive” interpretive canon, in that it directs courts to depart from a contract’s most natural interpretation in favor of—and to further—a policy preference for arbitration. For the uninitiated, canons of interpretation are conventionally divided between the “semantic” and the “substantive”—or some variation on that dichotomy. See, e.g., Brett M. Kavanaugh, Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118, 2121 (2016) (book review); Caleb Nelson, What Is Textualism?, 91 Va. L. Rev. 347, 394 n.140 (2005) (“descriptive” vs. “normative”); William Baude & Stephen E. Sachs, The Law of Interpretation, 130 Harv. L. Rev. 1079, 1123 (2017) (“linguistic” vs. “legal”). Semantic canons do exactly what their name implies—they provide “the general rules by which we understand the English language.” Kavanaugh, supra, at 2145. They help courts ascertain the ordinary meaning of a legal text—such as by reminding us that that “[t]he expression of one thing implies the exclusion of others,” that “and combines items while or creates alternatives,” and that when words “are associated in a context suggesting that [they] have something in common, they should be assigned a permissible meaning that makes them similar.” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 107, 116, 195 (2012).
Substantive canons are an altogether different kettle of fish. They have little (if anything) to do with a text’s ordinary meaning, but rather instruct courts to favor certain substantive policies in interpreting that text. See John F. Manning, Textualism and the Equity of the Statute, 101 Colum. L. Rev. 1, 96 (2001); Nelson, supra, at 394. They express the law’s supposed preferences when certain close interpretive calls arise. Thus, the contra proferentem canon expresses a preference that an ambiguity in a contract provision be interpreted against its drafter. See Lamps Plus, Inc. v. Varela, 139 S. Ct. 1407, 1417 (2019). Likewise, the rule of lenity expresses a preference that an ambiguity in a criminal statute be interpreted in the defendant’s favor. See Yates v. United States, 574 U.S. 528, 547–48 (2015).
Substantive canons have been the subject of debate among textualists. Some, including then-Professor Barrett, have written that “[s]ubstantive canons”—at
Others have suggested that a substantive canon’s validity depends not so much on whether it diverts courts from the most textually plausible reading, but rather on its legal pedigree. See Baude & Sachs, supra, at 1122–24. On this account, substantive canons may require courts to depart from the most natural interpretation of a legal text, but only when the common law, a statute, or a constitution commands that departure. So, for instance, the common-law rule of will construction “mak[ing] it difficult to disinherit one’s children,” although it “do[es]n’t necessarily track actual linguistic usage,” remains “binding on the parties simply because [it is] the law.” See id. at 1094–95; see also, e.g., Restatement (Second) of Contracts § 201(2) (1981) (providing default rules when parties attach different meanings to a contract term);
Accordingly, whichever of these two camps has it right—or however much daylight really exists between them—substantive canons not firmly grounded in the written or common law are, in my view, on extremely thin ice.
2
Which brings me to the second and third—and to me more problematic—characteristics of Moses H. Cone’s pro-arbitration canon: It is both especially potent and especially made up. As for the former, the Moses H. Cone rule is, among substantive canons, about as strong as they come. Often, a substantive canon kicks in only within a relatively narrow range of uncertainty. Contra proferentem, for instance, “applies ‘only as a last resort’ when the meaning of a provision remains ambiguous after exhausting the ordinary methods of interpretation.” Varela, 139 S. Ct. at 1417 (quoting 3 Arthur Corbin, Contracts § 559 (1960)). So too, “[t]he rule of lenity applies only if, after seizing everything from which aid can be derived, . . . we can make no more than a guess as to what Congress intended.” Reno v. Koray, 515 U.S. 50, 65 (1995) (quotation marks and citations omitted). Other substantive canons operate more broadly, by applying, for instance, whenever a substantively favored interpretation is “plausible.” See Barrett, supra, at 117–18 (listing as examples the rules that statutes should be interpreted to avoid constitutional doubt and to comport with international law). But the Moses H. Cone canon operates even more broadly than that, applying whenever “any doubts” exist about the arbitration provision’s scope. 460 U.S. at 24 (emphasis added). It thus diverts courts from the best reading of the
Moses H. Cone’s pro-arbitration canon is also, so far as I can tell, a judicial invention. Unlike, say, the rule that “if Congress intends to alter the ‘usual constitutional balance between the States and the Federal Government,’ it must make its intention to do so ‘unmistakably clear in the language of the statute,’” Will v. Michigan Dep’t of State Police, 491 U.S. 58, 65 (1989) (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985)), which has at least a plausible foothold in the
Nor, so far as I’m aware, does the canon have any basis in any history that might inform the
III
I tend to think we might be better off without the Moses H. Cone canon, which can put a court in the untenable position of having to ignore the best evidence of a contractual provision’s meaning. Even when an arbitration agreement is most properly read not to require arbitration of a particular dispute, a court must compel arbitration if it has “any doubts” about the agreement’s scope. Rather than employing the traditional tools of textual interpretation, courts are made to forgo meaningful interpretation in the name of, among other things, reducing court congestion.
I agree with Justice Kagan that, to one extent or another, “we’re all textualists now.”4 Because that’s so, we shouldn’t be atextually interpreting a statute in a manner that, in turn, requires us to atextually interpret contractual provisions. Rather, we should interpret the