Ignore dissenting opinions at your peril!

Today our state supreme court issued yet another opinion on the vexatious issue of arbitration clauses and when they are too laden with unconscionable clauses to be severable. The op is a good one -- whoever drafted some of those provisions provided some very bad advice -- but I found this part a little odd:

The drafters of arbitration clauses, who truly seek the benefits of arbitration, including reduction of dispute costs, would be wise to heed the prior pronouncements of this Court, such as:

Neither is it wise to allow companies to draft arbitration clauses with
unconscionable provisions and then let them try them out in the marketplace,
secure in the knowledge that the courts will at worst sever the offending
[provisions] after plaintiffs have been forced “to jump through hoops in order
to invalidate those agreements.”

Now, don't get me wrong -- I agree with the sentiment, and am happy to see this particular opinion quoted.

It's just that the citation reads like this:

Sanderson Farms, 848 So. 2d at 852 (Cobb, J., dissenting; Smith, P.J., and Carlson, J., joining) (dissent would have held the arbitration agreement unconscionable; plurality did not address unconscionability, as it held that Sanderson Farms had waived its right to compel arbitration) (quoting Cooper v. MRM Inv. Co., 199 F. Supp. 2d 771 (M.D. Tenn. 2002), rev’d in part, vacated in part on other issues, 367 F.3d 493 (6th Cir. 2004)).

Um, is a dissenting opinion a "prior pronouncement of this Court"? Is anyone to be reproached for failing to adhere to the teachings of a dissent?

Granted, that dissent *shoulda* been the opinion of the Court, so I'm glad to see it getting some love from a majority today. But it's a rather odd way to mention it. The rather unusual parenthetical in the citation suggests that Randolph, or his law clerk, knew they were pushing things a bit, too.

... The Gatlin dissent includes a lovely quotation from Gibbon:

My conscience is shocked by a plaintiff’s being billed $11,000 or more, simply to obtain a hearing (exclusive of attorney fees). A country in which legal redress was available only at such costs would deserve the criticism that Edward Gibbon directed at the Roman Empire’s system of justice:

The expense of the pursuit sometimes exceeded the value of the prize, and the fairest rights were abandoned by the poverty or prudence of the claimants. Such costly justice might tend to abate the spirit of litigation, but the unequal pressure serves only to increase the influence of the rich, and to aggravate the misery of the poor. By these dilatory and expensive proceedings, the wealthy pleader obtains a more certain advantage than he could hope from the accidental corruption of his judge.

2 Edward Gibbon, The Decline and Fall of the Roman Empire 1480 (J.B. Bury ed., Modern Library 1995) (1788) (emphasis added).

Dickie Scruggs should've attended to that last part.