We recognize that this Section’s year, unlike a number of past years, starts without the presence of our former chair (1999) and a long-time leader in the Section, Samuel (Sam) H. Porter, who passed away a short time ago. We are profoundly thankful for all his many contributions over the years and having had the pleasure of his association. Sam fervently believed that it was a privilege to practice law, not a right, and he set a standard of excellence to be admired and emulated. He will be missed.
In this edition, there are two articles addressing recent Supreme Court decisions of interest. Rene Ruiz, a shareholder of Cox Smith Matthews, Inc., discusses Justice Sotomayor’s decision concerning the water rights dispute between Texas and Oklahoma under the Red River Compact. For those of you who live in the West, you are well aware of the importance of water rights to the economic success (and indeed survival) of agriculture and other industries. The saga of water diversion rights addressed in this opinion will likely resurface in varying contexts, as there are a number of other cross-border water compacts, and enforcement disputes are expected to arise again. This decision, though somewhat fact-bound, may have an impact on the resolutions of these battles for control of a wanted resource.
In our second article, Jay Range, a partner of Hunton & Williams LLP, discusses the Supreme Court’s recent decision that held that a contractual waiver of class-action arbitration is enforceable under the Federal Arbitration Act. This was an instance where the claimant’s cost of arbitrating a federal statutory claim on an individual basis exceeded any likely recovery. Nonetheless, with a divided Court, the waiver was upheld as enforceable. This thoughtful commentary reviews recent decisions considering the enforceability of private contractual dispute resolution provisos that affect access to the use of the class-action vehicle in an arbitral setting or in the state and federal courts. It should be of interest to those who are called upon to draft dispute resolution clauses in contracts and those who litigate the enforceability and scope of those clauses as they may apply to the class-action treatment of the claims alleged.
We owe a special thanks to Judge Cudahy who has been gracious enough to continue on as editor-in – chief of Infrastructure. We welcome those who wish to submit articles of topical interest for publication.