Can a State Hold that Powers of Attorney Will Only Bind Principals to Arbitration if Binding to Arbitration Is Expressly Mentioned in the POA?

A wife has a general power of attorney to act on behalf of her husband. A daughter has a general power of attorney to act on behalf of her mother. Using the powers of attorney they sign their loved ones into a nursing home. The paperwork includes a binding arbitration clause. When the husband and mother die, the wife and daughter blame the deaths on the nursing home and sue it. The nursing home moves to dismiss the suits to stick the plaintiffs with binding arbitration.

The trial court rules in favor of the plaintiffs, as does the court of appeals, as does the Kentucky Supreme Court. They hold that under Kentucky law a power of attorney can only bind a principal to arbitration only if the right to bind the principal to arbitration is expressly provided in the power of attorney.

The Supreme Court of the United States ruled in favor of the nursing home. They held that the Federal Arbitration Act superseded any state rule disfavoring arbitration, and, that, therefore, Kentucky's rule was contrary to that act.

Justice Kagan wrote for seven members of the court. New Justice Gorsuch recused himself, and Justice Thomas dissented consistently with earlier opinions of his that the Federal Arbitration Act doesn't apply to state court proceedings.

Kindred Nursing Centers, v. Clark, No. 16-32, 581 U.S. _____, (May 15, 2017.)

Some disputes are better suited to arbitration than to trial.  Arbitration with choice of law is good for international trade disputes, especially where the contracting parties can each pay the costs of hiring the arbitrators, etc.  Otherwise, an unscrupulous party could grow a million flowers of delay that could drag on for years. Arbitration has worked pretty well between stockbrokers and their customers. They make sense where our brains are miswired to make a disinterested decision (For more on this read Predictably Irrational by Dan Ariely. I could even see that nursing home wrongful death cases might qualify.

Arbitration makes me uncomfortable in arm's length consumer transactions, especially when the consumer is expected to pay in the low four figures or above in advance for the arbitrators and must \ additionally a lawyer who knows about arbitration and the subject matter of the dispute. Often the location is very convenient for the business (in a town where one of their main offices are) and very inconvenient for the claimant who, along with counsel,  might have to make multiple cross-country trips.

Arbitration can burden a claimant with high costs and strip a claimant of many of the protections of the constitutions (federal and state), statutes (federal and state), and procedures of courts- arbitration of manufactured housing disputes, workplace discrimination, software license agreements, etc. Furthermore, these contracts are often contracts of adhesion.  Don't agree to arbitration? Well, then no mobile home for you, or job, or use of vital software.

Notwithstanding all that, if arbitration is sometimes advisable, I am sympathetic with courts. like the one here in Clark, making it very difficult to weasel out of arbitration agreements, It would not take  very many exceptions to make the FAA a dead letter.

The Courage of the Appellate Criminal Defense Lawyer

It takes courage to be a criminal lawyer, especially a criminal defense lawyer, especially a criminal defense trial lawyer, but sometimes it takes courage to be an appellate lawyer as here. This is not the whole hearing. Maybe there's something in the missing part that would, in part, excuse the judge's behavior, but the judge appears to be impatient with and discourteous to the public defender, which is contrary to Kentucky's Code of Judicial Conduct canon 3(B)(2).
Not everybody is going to be as lucky as David Barron, the public defender here, to have a video of judicial misconduct. In Texas, if there is going to be any chance that you are going to be in a situation like this (and I will grant that sometimes you cannot predict when trial judges are going to be hateful and obstreperous), you need to bring three disinterested witness to view the proceedings so that, if needful, they can swear to a bystander's bill, a way to make a trial court record when the judge or court reporter refused to make one or let you make one.
In the video, the judge complains that he wishes that a trial lawyer were before him instead of an appellate lawyer. There is a joke about a trial judge and an appellate judge duck hunting with a guide. They come upon some ducks. The guide tells the appellate judge to go first. Cocking the hammer, waiting for the birds to rise, the appellate judge fires when they do come off the water. The trial judge is next; when a group of birds fly by, that judge shoots a number of times, hoping that there was a duck somewhere.
I am a trial lawyer as well as an appellate lawyer. I have some sympathy for the trial judge who, from time to time, has to make momentous decisions on the spur of the moment in the heat of the courtroom, while appeals court judges get to take months to calmly ponder trial judges' decisions from cold records in the peace of appellate chambers.
But what a judge like the one in this video is complaining about, is that appellate lawyers get to (or have to, depending upon your point of view) judge trial lawyers and trial judges. They do that because appellate judges are in the business of correcting trial judges. Good appellate judges are not afraid to correct the errors of those siblings of the bench who are, formally, their juniors, and the best ones give some leeway to a trial judge who is physically at the trial, and needs much shoot from the hip to get a blast off at all. A trial judge who can't deal with being subordinate to the higher courts should get a different job-- perhaps try to be a high court judge.
Thanks to Martha Neil and the folks at the American Bar Association journal for bringing this to my attention.