Page:Lamps Plus, Inc. v. Frank Varela.pdf/46

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Cite as: 587 U. S. ___ (2019)

11

Kagan, J., dissenting

default rules as a run-of-the-mill aspect of contract interpretation, which (so long as neutrally applied) can support class arbitration.

And nothing particular to the anti-drafter rule justifies a different conclusion, as the majority elsewhere suggests, see ante, at 9–11.^[1] That rule, proclaims the majority, reflects “public policy considerations,” rather than “help[ing] to interpret the meaning of a term” as understood by the parties. Ante, at 10. The majority here notes that some commentators have viewed some equitable factors as supporting the rule, see ante, at 9–10—which is no doubt right. But see 11 R. Lord, Williston on Contracts §30:1, p. 11 (4th ed. 2012) (Williston) (stating that the rule is not justified by public interest considerations). But if the majority means to claim—as it must to prove its point—that the anti-drafter rule has no concern with what “the part[ies] agreed to,” Stolt-Nielsen, 559 U. S., at 684, then the majority is flat-out wrong. From an ex ante perspective, the rule encourages the drafter to set out its intent in clear contractual language, for the other party then to see and agree to. See Ayres & Gertner, 99 Yale L. J., at 91, 105, n. 80 (stating the modern view); 2 W. Black-
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↑ The majority actually sends conflicting signals about the extent to which its holding extends beyond the anti-drafter rule to other background principles that serve to discern the meaning of ambiguous contract language. Many of the majority’s statements indicate that any tool for resolving contractual ambiguity is forbidden if it leads to class arbitration. See, e. g., ante, at 6 (stating flatly that “an ambiguous agreement [cannot] provide the necessary ‘contractual basis’ for compelling class arbitration”). But the part of the opinion focusing on the anti-drafter rule suggests that today’s holding applies to only a subset of contract default rules—to wit, those (supposedly) sounding in “public policy considerations.” See ante, at 9–11. On that theory of the decision, courts and arbitrators will have to work out over time which interpretive principles fall within that category. The majority’s own flawed analysis of the anti-drafter canon, see infra, at 11–12, indicates the perils of that undertaking.

[1] The majority actually sends conflicting signals about the extent to which its holding extends beyond the anti-drafter rule to other background principles that serve to discern the meaning of ambiguous contract language. Many of the majority’s statements indicate that any tool for resolving contractual ambiguity is forbidden if it leads to class arbitration. See, e. g., ante, at 6 (stating flatly that “an ambiguous agreement [cannot] provide the necessary ‘contractual basis’ for compelling class arbitration”). But the part of the opinion focusing on the anti-drafter rule suggests that today’s holding applies to only a subset of contract default rules—to wit, those (supposedly) sounding in “public policy considerations.” See ante, at 9–11. On that theory of the decision, courts and arbitrators will have to work out over time which interpretive principles fall within that category. The majority’s own flawed analysis of the anti-drafter canon, see infra, at 11–12, indicates the perils of that undertaking.

[1]