October 2022

SCOTUS will begin hearing oral arguments for its next term tomorrow. One of the cases of particular interest to BLPB readers will be 303 Creative LLC v. Elenis. As noted on SCOTUSblog (here), the issue in 303 Creative is: “Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment.” The case promises to resolve important issues left open by the Masterpiece Cakeshop decision. For whatever it may be worth, I predict that the following excerpt from the 10th Circuit’s decision below will be critical to the Supreme Court’s analysis — with SCOTUS rejecting the 10th Circuit’s conclusions.

Excepting Appellants from the Accommodation Clause would necessarily relegate LGBT consumers to an inferior market because Appellants’ unique services are, by definition, unavailable elsewhere…. To be sure, LGBT consumers may be able to obtain wedding-website design services from other businesses; yet, LGBT consumers will never be able to obtain wedding-related services of the same quality and nature as those that Appellants offer. Thus, there are no less intrusive means of providing equal access to those types of services…. This case does not present a competitive market. Rather,

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Since there’s absolutely nothing of interest happening in the business world these days, I figure it’s a good time to tell the story of how I tried to reject an arbitration clause when buying a car.

It was 2013, and I’d just moved to Durham, North Carolina to become a Visiting Assistant Professor at Duke.  It was quite the move; other than for schooling and clerkships, I’d spent my entire life – including my legal career – in New York City.  I’d never owned a car or really even driven one before; I had to take driving lessons in advance.  And when I arrived in Durham, I spent the first week frantically researching cars – there’s a difference between make and model, who knew? – before forming my preferences (namely, inexpensive, good gas mileage, and very very safe, to give myself a fighting chance in the all-but-inevitable crash. And small, so I’d also have a fighting chance at staying in a single lane).

I looked at a mix of new cars and used cars before settling on a bright red Kia Rio, gently used from a previous life as a rental.  (Me on test drives is a whole ‘nother story…