arbitration agreement kentucky applies a rule different and more demanding than the rule for determining whether a power of attorney confers already to enter into contracts generally a question in this case is whether the federal arbitration act precludes kentucky from  ting the special arbitrate obstacle to enforcing arbitration agreements signed by an attorney in fact to ask that question we believe has to answer that's the very reason that congress an act of the f a a to prevent that's not this that you don't know but at some point going to arbitration cause being included in a list of items that must be given special attention at some point they can your honor and i think the dividing line the statute of course refers to rules that apply to any contract this court has talked about contracts generally we don't think that's of that means that the rule has to apply to every single contract no matter what if the rule takes its meaning from  characteristic other than arbitration to give an example if as if the state had a law that said all consumer contracts have to be in at least ten point type surely the court the state could apply that law to an arbitration agreement associated with the consumer contract the problem obviously arises if there's some gerrymandering that puts arbitration in a special category and we think the rule here fails for several reasons  one of which is even the categories that the state court said it was directing really don't hold up based on the objective evidence but also more importantly the reason that arbitration was included in this category is the very reason that the f a a forbids which is the conclusion by the state that arbitration is an arbitration contract is especially onerous and therefore should be classed with other especially onerous contracts that's exactly what the f a was designed to prevent so that's the the problem here so how about a different example would read more related than mine under kentucky let's say the power of attorney requirements are strictly construed that was one of the principle that the court will use to interpret at least one of the contracts and as a general matter it states that the state requires express consent to confer power to waive any fundamental constitutional right with this general principle be preempted by the a by the f a a well let me distinguish between those those two general principles your honor if i may i think up a principle of strict construction fairly applied across a wide category of contracts probably is something in other words if it applied to all powers of attorney probably is something that would pass muster in the a again recognizing that a court would have to take care that notwithstanding the general rule there wasn't some discrimination in fact against arbitration i think the question about a fundamental rights  line let me answer that in two ways first of all in this case we don't believe that that's in fact what happened because we think there are a number of fundamental rights that are not categorized in the group that the state court mentioned and in fact what the state court did was identify four of five especially onerous examples of intrusion on fundamental rights and say they these are all like arbitration it didn't say all fundamental rights for example form selection clauses may due process rights there's no indication that they're covered the right to property etc etc i think so that's not this case if there were a fundamental rights rule i think the problem that it presents is whether that intrudes on the judgment that the f a a made that arbitration contracts are not especially onerous as other waivers of fundamental rights may be and therefore i think that case would it's obviously different than this one the court doesn't have to reach it but we think even in that case grouping an arbitration contract with the contract to enter into a  like that i think is troublesome because it really puts arbitration agreements in the very common category that congress and they shouldn't be and what about if the category were fundamental rights that kate the the individual's life or health so that you would have to have an express provision giving the attorney in fact authorization to consent to various procedures that a terminally ill person might undergo and if this were put in that category well i just want to make sure i understand your hypothetical your honor well nursing facility so what if that were lumped together with consent to surgery consent to terminate feeding or were breathing for a terminally ill patient all of those could be put into a category tha implicate life or health they could i don't think an arbitration agreement would would fall into that same category of implicating life and health and and also i think it's important to recognize that again here the state court didn't say that all decisions implicating life or health are subject to a special express requirement if it identified a couple  an abortion or adoption well justin and justice alito so example just to take a little further suppose the nursing home said you cannot enter here in less you sign the arbitration agreement and this is the this is the only place where this person can go for care that brings it closer to some of justice alito as examples because now there's a danger that the care can be rendered well interestingly what the the kentucky court held in another case paying that that actually the power to make health decisions would be interpreted to include the power to enter into an arbitration agreement if arbitration were a condition of admission but in this case because it wasn't the condition of admission it didn't apply that rationale i think i guess the distinction here seems to me the decisions about health that we're talking about operations medicine are a category of important decisions that the state has the power to decide about the the the problem with the with the hypotheticals is that the f a a basically says the state doesn't have the power to treat arbitration agreements specially on the theory that they impose some special burden on the parties to the arbitration agreement and so i think the decision by the state to lump them together with those other decisions afoul of the f a a again not at this case but the context here seems different from the arbitration cases that we've had in recent years this doesn't involve an arbitration about the amount that you were charged for your cable bill or for your telephone bill and this involves a situation where an elderly person needs care and as justice kennedy's hypothetical mentioned it may be that the only facility that's available or all of the facilities require the signing of and agree an arbitration agreement which prevents the assertion of tort claims and the elimination of the deterrence that they provide m really implicate the care of someone who is vulnerable so this seems like something that is close to there that it falls squarely within the police power of the state now i suppose that there's a connection here the interstate commerce i don't know what it exactly it is but on the a sump that everything is connected interstate commerce i assume that this falls within the f a a but you see the problem with this is really taking the arbitration precedents that we have handed down in recent years into a different category of interests well respectfully i don't i don't think so your honor that the court unanimously decided the marmet case a few years ago which involved this precise context an arbitration agreement in the nursing home context and they are one of the arguments that were as advanced in opposing it in supporting the rationale that the arbitration clause shouldn't be enforced was that tort claims and the nursing home context is different and the court expressly rejected that criteria and i got i think congress is judgment in the f a a and congress has specifically looked at the nursing home context in recent years there have been a number of hearings in examinations is that there isn't a difference between deciding claims in arbitration or in court and the amicus briefs filed in the case i think recite some of the empirical data that in fact in the nursing home context and in other contexts arbitration results for claimants are quite similar the differences are it's cheaper the process is cheaper and faster what do you do with the argument that it doesn't have to do the enforcement an arbitration the what the kentucky court said we're interpretating the power of attorney document in a way that renders the arbitration agreement unenforceable i don't think anyone argues that any of the other requisites of contract formation were not present but also this court has never drawn a distinction between contract formation and enforceability in applying the f a and i think to do so would open a dramatic hole in in the f a because it would be quite easy for a state to say for example an arbitration agreement requires notarization no other contract does or an arbitration agreement to be properly formed must contain a provision that allows it to be r first part of its discussion about that in just interpreted the power of attorney as not reaching arbitration so there was just exercising its ordinary powers of contract interpretation i think  it's closer to the to the issue that the court confronted him berghia whether that really was an ordinary contract interpretation and as we've explained the argument for enforcing it is that it expressly provides the authority to contract with respect to personal property and it's been long settled under kentucky law the chosen action causes of action or personal property the court didn't apply that precedent and that seems to be exactly the as in emerging the a situation where a generally applicable rule was not applied in the arbitration context when you think every time a state court incorrectly  interprets a power of attorney relating to as it relates to arbitration that that raises an f a a preemption issue i think the question is whether the state court's decision fails to put an arbitration agreement on an equal footing as the as the court has said i obviously there's not going to be the patient or the ability for the court to review all of those decisions i think in this case there's obviously a difference between the clark situation where there was no argument that the power of attorney was in big u s and in fact the state court said it wasn't that's just applying a new legal rule in the clark situation there is this question about whether or not it was ambiguous but we think under under any reasonable test it really can't be said to be ambiguous given the longstanding rule under kentucky law and the fact that the power of attorney there in a these two cases do you think ping is closer to the neutral application of a contract interpretation i do because the what the court relied on in paying was the absence general authority to contract and the fact that the broader all what king provided for was the ability to invest funds the ability to make health decisions and the ability to essentially administer real property it didn't have a general clause relating to the making of contracts or the making of contracts with respect to personal property i see there was some i'm sorry that i was going to say well there's a little closer but it will never see the difference in willmar is that wilner does have a very broad clause that provides for the making of it's with respect to personal property and given the fact that under kentucky law personal property includes choses causes of action shows as an action it's pretty clear and also in welner and not in paying was a separate provision that gave the attorney the power to bring and prosecute lawsuits so if the if the if the fear was that that general power to contract with respect to personal property somehow didn't extend to litigation there's a separate clause with respect to litigation now the kentucky court said that clause alone isn't enough because it doesn't relate to arbitration or to contracting but it seems to me the combination of them is pretty powerful in exactly readies going wrong that's a pretty weak argument that they've order magically made a special fool for arbitration they looked at it instead institute settle and conduct litigation with no mention of alternative dispute resolution and conveying personal property not necessarily contracting there wasn't a general contracting clause so i think there's arguments on both sides of that question but if there is what do you suggest we do well let me take a little bit of issue with your with the predicate of your question because the welner power does say to make execute deliver these releases conveyances and contracts of every nature in relation to both real and personal property so i think that is a pretty broad provision that was not present in pink and mr pinkas may ask you a question about the wrongful death who determine which one goes first because if this if the survivors action goes first and the nursing home is found liable when the nursing home be bound by that situation i guess that in the first instance would be a question of kentucky law your honor i'm not sure how kentucky law in arbitration treats prior decisions and i also since they that the fact that there are claims that could be bundled together doesn't mean that the ones that are subject to an arbitration clause shouldn't be sent to arbitration just to sort of return to first principles and to elaborate on my answer to just the sort of my first question i have there are two two distinct issues in this case one is the general  express reference rule that the court announced and applied with respect to welner in particular that rule obviously also applies to the clarke power of attorney i mean in applied and clark with respect to the welne power of attorney there is the second question about whether the the language that that i quoted is sufficiently clear that a decision by the state court that it is the ambiguous triggers the same kind of  concern that the court identified in number as as indicating that this is really a special rule targeting arbitration as opposed to the application of a neutral principle unless the court any further questions i'll save the remainder of my time but thank you thank you coun thank you mr chief justice it may please the court kentucky is a common law state in the development of its power of attorney interpretive law and is not a uniform power of attorney act state therefore over time the conduct of supreme court and the lower court kentucky developed kentucky's interpretive rules regarding powers of attorney case by case again over time and and this is the rule that the conduct of supreme court has established the announcing of this particular role but logically from here on out any such actions taken by an a an attorney in fact that might restrict the principles of free speech speech rights say by entering into a contract with a non disparagement clause or some sort of confidentiality clause that would necessarily have to be spelled out in a power of attorney and their words were in another words for a number of years or kentucky  hundred twelve that powers of attorney are to be strictly interpreted and that the third party deals with the principle by an agent at that third party's own peril therefore it is up to and incumbent upon that third party to be very clear and understand what the agent is allowed to do and and the fact is that it is the reason these cases have not come up is that the third parties that the banks that the whatever they are receiving powers of attorney has authority of agents for principles they've always demanded very explicit information and that power of attorney this happens to be an instance where you have this third party who doesn't who does actually want more explicit language and the power of attorney have answered yes in kentucky issue a power of attorney land over here that we thought belonged to csma belongs to him and to various state yes the attorney says in my opinion i want this trial before a judge because i think i'll get her shake  illegal right are you making that six year arm between oh you just said anything that will use a right to a jury is illegal unless it's explicitly there so that's case one case two similar kind of argument and the lawyers for the two parties get together and say we'd like to settle this case illegal right no power they can't do it in kentucky can't settle cases can't have traces of cases tried you're giving the attorney the power to refuse to have a jury well your honor so what's the difference between that and the case we have we're not going to have a mediator we're not going to have settlement we're not going to have a judge trial we're going to have an arbitrator but you're out of the interpretive rule that they conduct a supreme court and nancy it was the power to waive general a fundamental constitutional rights that the idea that they had the the person is going to waive their jury rights in general from now on although he did was say that in the attorney's judgment if he wants to go to arbitration and thinks that best he can do it now i just don't see the difference between that and implying in the attorney's job and couldn't judgment if he wants to settle a case rather than going to a jury he can do it or if in the attorney's judgment he would like a case tried before a judge instead of a jury he can do it and you're going to tell me that that's ridiculous to think that a general power of attorney would give the attorney the right to say no jury judge trial no jury mediator oh but it makes perfect sense to say no jury arbitrary arbitrator now if you're not going to tell me that those are treated exactly alike i will tell you in my opinion right now you have discriminated against arbitration well you're on unless you can find some different it seems to me that the analog to what your you're proposing would be an instance where the attorney in gauged with another party never to have a jury trial with that party just for a fork from now on or that they're always going to go to mediation and never go to that isn't this you say that a tourney i'll be repeating myself i'm testing out whether it's really true of course i'm highly suspicious as you can tell from my tone of voice what i really think has happened is that kentucky just doesn't like the federal law that's what i suspect so they're not going to follow now that of course you're going to say no they would never do that so i'm trying to test this out and that's why i asked my question because it seems to me that arbitration as a means of settlement of a case of a dispute mediation as a means of settling at this bude a judge as a means of settling at this people are equally and no different in the respect that none of them whose three involves a trial by jury so i just want to know and you have already said no no they're all different well that to me proves that they're creating arbitration specially so i put my whole argument there because i want you to have an an agreement to settle pretty dispute would be liquidated damages clause and i think that the that the conductor supreme court probably would not look very favorably on an attorney a liquidated damages clause with a nursing home to settle any potential personal injury that occurred during the nursing home residents stay but i actually want to get to if i could more overarching point in this case and that is the federal arbitration act does not extend this court's powers of interpretation beyond agreements to  arbitrate moreover directv was the exception that proves the rule and the rule applies here excuse me this court does not ordinarily instruct states in how to interpret the instruments and documents that are governed by state law and she's not missed your point the f a a does not extend beyond what agreements are beyond agreements arbitrate they interpret interpret in them or anything with respect to them for example you're not arguing that of kentucky had a law saying you can't have agreements to arbitrate that would certainly be covered by the  well there were since we're talking about laws that have an impact on agreements to arbitrate i guess i don't understand the effect of your principle well we're looking at the black letter of section two which provides that agreement to arbitrate shall be valid irrevocable and enforceable save on such grounds as they do this for the revocation of any contract that pertains pacifically to arbitration agreements and so what we have here we have an absence of authority of the signatory to this arbitration agreement that certainly should qualify as a a a ground for the revocation of any contract absence of authority so that is as far as the federal arbitration act extends it extends to the enforcement of formed existing arbitration agreements it doesn't certain instances the prevention preemption of state law and certain instances one does not create or other kinds of right such as the right the entitle ment to the creation of agency in someone else's said that ordinarily issues of state contract law interpretation are for the states and it excepted the the lower california court's interpretation of that that particular california contract even though it it meant that there was not going to be an arbitration on the other hand in direct t v the opposite occurred and now what's the really the difference there the difference there is where the decision maker has effectively abandoned its interpretive role in direct t v one could certainly say that the california appellate court in that case had abandoned its interpretive role and rather impose its own policy interest s and predilections on that that that contract to use another example now this is slightly different because it would fall under the tin before deference standard but the difference between still nielsen on the one hand and oxford health on the other you have an instance where an arbitrator simply imposed a policy decision on its quote unquote interpretation of the contract and in which case it the arbitrator had gone outside of his expressed powers under that contract and oxford health where even though there was some suspicion that the arbitrator had gotten is or her interpretation of the groom it wrong nonetheless that arbitrator was attempting to interpret that arbitration contract and this court respected that now again i understand that that was one of the ten before analysis but if you look in this case clarke refers to all contracts and i think my friend mr pinkus is probably relying on the literal interpretation wall contracts means means all contracts we must recall that involve ursus leland stanford what we had was also a  potential literal interpretation the love the place the love the place in that instance the place being california well what is the literal law of that place that the law that place is the log the state of california and federal law but the california court has determined that the local understanding and local usage of that phrase that phrase law of the place actually just referred to personal property well the my response to that your honor mr chief justice is that the kentucky supreme court certainly in gauged in  trying to understand the intentions of the words that the principles meant and he simply said that a principle no principle who grants the power to their son their daughter their their spouse their their attorney in fact to buy and sell property or engage in contracts involving property would ever think that that was a loud that that attorney in fact to engage can gauge in one of these arbitration agreements in a in the earlier case regarding powers of attorney in kentucky and that was i believe it's us guarantee and trust and all right case from not from nine hundred twelve the there's language the effect of giving the power for an agent to buy or sell property does not intrinsically give that person the the power to mortgage property although one could say that that should naturally flow from from the the overarching language so that's the sort of backdrop and context in which the kentucky supreme court has operat if i could turn for a second to directv which is obviously relied on to a large extent by kindred and that particular case i think that this court reiterated its basic assumption that ordinarily what a state instrument means is a question for state law in the state court and only in exceptional circumstances will this court engage in a preemption and in this in essence an independent review and reinterpretation of that state instrument and in direct t federal arbitration act preemption into the way they read their california contract the direct t v contract and they did so without attempting to tie that effectively to what the parties might intend in the direct t v contract here we do not have that we have the kentucky supreme court and now sing an interpretive rule that and it may be difficult for to to work it out over over time but again that's the way the common law develops that if you have a general waiver of a fundamental constitutional right by a power of attorney that has to be spelled out in the dock we give this power of attorney to manage my patent general a lot of litigation the other side comes in and says ok we'll settle with like you to sign this paper in the says what you will say and what you won't say about my cotton absolutely normal what you will say about your patent what you want to say about it in certain areas you can't do that in kentucky speech honor mr justice brier i think that's correct you can't get can't give a power general power attorney that will allow a person to settle up in case of a perfectly ordinary terms well it doesn't make a difference there any case that suggests except this case which happens to deal with arbitration well it does happy to see i don't know how to depart i don't know how to deal with your argument is as you say every time i think of examples of be very weird  which is what i'm trying to do then then you say oh well yeah that's right you can't do that anymore in kentucky and every time you say that the law of kentucky in terms of attorneys powers of attorney is getting more and more peculiar attorney the power to enter into normal pattern settlement to end what about business settlements what about business settlements who are you know there is a perfectly normal thing where a person agrees not to compete and in agreeing not to compete you're agreeing not to go to certain places with what business anyway a lot of constitutional rights that might infringe it if you didn't play that well just right i mean again that's a that's a question of what constitutes a fundamental fundamental constitutional right now and what you say about the competing product right that would in fact be a infringement on the principles free speech indeed in the instances where there are settlement in personal injury actions often there are disparagement guy right and by the way he makes a product you know the person is given the power of attorney and as part of the disagreement the attorney a disagreement with  he agrees that osha can come in and inspect his plant at various hours of the day or night that kind of power attorney would be illegal also in kentucky i mean is there any state that makes that kind of power of attorney illegal or requires it to be explicit somehow that you could settle an ordinary osha case you could settle an ordinary competition case you could settle an ordinary you know patent case on fairly ordinary terms and it says when you give a power of attorney to do that you have to be explicit is there any state other than kentucky in this opinion that is ever held so to then maybe there is well your honor if i could use a comparative example from the contract if and when it is incorporated may turn on whether or not that clause is considered material now whether or not it's it's considered material is a question of state law and as i understand that is never been challenged that debt in some instances that would that will in fact cause arbitration clauses not to be incorporated on contracts and not be enforceable because they're considered material and they haven't been negotiated properly what constitutes a fundamental constitutional right is a course in an open question but it does seem that certain things such as speech marriage religious rights those sorts of things cannot be dealt with on a permanent basis visa via another party by an agent or without the principle explicitly authoriz them to do so furthermore what the principal has explicitly authorized for the agent to do so is interpretive question regarding this this instrument and just isn't with a state statute what a state statute means is a question for the state supreme court what the principles meant what's in compas you know within the these powers of attorney ultimately someone has to determine what that is in i it does your honor but again our or our position is that the federal arbitration act does not extend beyond agreements to arbitrate such that in the instance of the u c c example that i just used  state decision as to whether or not arbitration clauses are considered material might make that might make it harder to form the arbitration agreement as part of the larger commercial contract we believe that the federal protection does not speak to that however there are on the other hand it's distances where if a state specifically singles out arbitration to make it more difficult to form we believe that the formation that the f a would have something to say along those lines and the example i would like to use in that instance is the facts of cause or rado if if they were slightly different if the montana statute had news the that the language in its subsection that unless the arbitration clause is in no on the first page in bo through that we believe would be addressed by the fire arbitration act because it's not really a formation it it's really an in in force ability issue relieving the the parties to the contract the question here revolves around what the power of attorney means if the power of attorney in compas the authority for the agent to sign these this agreement then as a kentucky supreme court said the agreement will be enforced  if it doesn't then there is no agreement and i'm saying in saying that the federal arbitration act does not bear upon answering that question that that is a function of state law and of the state court interpretation of a power of attorney instrument powers beyond agreements arbitrary it does not extend then to powers of attorney however this court need not even reach out to that particular principle because we are talking about interpret ing a power of attorney which in the ordinary course of a state instrument is up to the state supreme court to to to make that interpretation and this court will here the kentucky supreme court did not single out arbitration for distinctive treatment and the kentucky supreme court went out of its way to tie the its interpretation of the meaning of the authority of the power of attorney  quick points with respect to the question about whether the f a a is limited to arbitration agreements i think it's important to note that the text of the f a a says that arbitration agreements shall be valid irrevocable and enforceable save upon such grounds as exist at law or in equity for the revocation of any contract so it's true the focus of the f a a is on whether the arbitration agreement is in forcible or not but there's nothing in the f a a that only true of the text of the statute it's true because the implications of that rule would be quite dramatic for example a state could just an act a statute that says a power of attorney can never be interpreted to confer the ability to enter into an arbitration agreement either at all  which my friend i think acknowledged would would be problematic under the f a a or could impose all kinds of special requirements it has to be notarized oeuvre to be warnings about the dangers of arbitration and generally what it also is they could also an act of statu powers of attorney can't we can't waive fundamental rights would would that violate the f a a in your view i think it would present a more difficult question than this case and let me explain why and then let me answer your question mr chief justice i think as some of justice briar's questions indicated the rule here doesn't in fact embody that principle because it is both it is under inclusive in inclusive is it if it's interpreted it is a sense kind of it says it embodied the rule that the supreme kentucky supreme court adopted which is that you can't really you can't waive fundamental rights and like a lot of statutes it's going to require some interpretation that's all it says it says you can't you know they're worried about the scope of powers of attorney and they say powers of attorney in kentucky cannot wave fundamental rights under the constitution and i think our answer to that question would be although the court doesn't have to reach it here that lumping arbitration agreements into that category of fundamental rights is a judgment that the f a a precludes the state from making because that's judgments that suggest that arbitration is  preferred right and i thought that the idea of the f a a was to say it can't be whatever this preferred one preferred you know but not to put it on its own separate playin like you can't deal with this in the same way that you could deal with any other fundamental right well that's why i say it would be hard to question your honor but but i think that the critical thing is here it's quite clear from the state courts own opinion that that isn't the rule of decision  because the state court as the dissent points out the express authorization requirement doesn't apply to jury waivers in a host of different circumstances as justice breyer's opinions pointed out and it also doesn't apply to lots of fundamental other kinds of fun rights are you saying that a court can never announce a generally applicable rule first in an arbitration case well i think it it certainly is something that should raise a lot of  suspicion can it never i would never want to say never but i do think that this aspect of the case presents a more compelling argument for application of the f a the name birgit in the birth of the threshold question for the court was does the california state courts interpretation of the phrase law of your state actually discriminate against single out arbitration there's no doubt this rule is singling out arbitration that's what the court expressly says well the question is how broad is that singling out which doesn't single out arbitration that happens to be the issue before it i mean basically it seems to me what it's coming down to is you just don't believe the kentucky supreme court when it says this is the general principle and you're saying well i really think you're hostile arbitration because i haven't heard their principle before and this is the first one but you know if the kentucky legislature passes a law that does the same thing and i mean are you going to be suspicious of them too just because arbitration to arbitration and they say will prove it and in five cases involving other fundamental rights they do what justice breyer suggests that they don't really have any intention of telling but they really do it they said no we're really serious about this we think powers of attorney are our special things and we have to impose special protections and then it comes up here you know the sixth time they say and arbitration to what do we do the well i guess a couple of things first of all i do think the court has to make a judgment as it did in a burka based on what's before it at the time and what's before the court at this time is a rule created in the context of arbitrary i know  mean what i want to hear you talk about it usually we don't presume that state courts are acting in ways that are not in accordance with law actually we usually give them the benefit of a kind of good faith presumption so if you're saying we're not they have to prove it first and five other cases before we'll believe them that they really do me and all constitutional rights that seems you know an unusual rule to apply to state supreme courts who we usually think are acting in good faith and in accordance with law well i don't know that they have to prove it i think this court has to look at the objective in disha as it did in numbers as done in other cases to see what is really going on in the case and i think even the majority below it did not although it said all fundamental rights the instant five instances that it identified were not general fundamental rights free speech for example was not one so you have the most on arrests right sorry you have to look at what's going on in the case so in my case where you just have a statute there's nothing else to look at so i still don't get why that would be invalid i think the question that case would not be whether it's going to be applied to the category of fundamental rights the question in that case would be does the f a a permit a state to make a judgment that contracts with respect to arbitration should be lumpy and other thought other are straight into word are but no i understand but there still is a question i think what the f a a at bottom what the f a a said to was reacting to was state courts saying arbitration is especially onerous and troublesome and we're going to require we're going to require special processes if we understand all but i'm talking about a legislative proposition and it doesn't say anything about arbitration it just says powers of attorney you can't waive fundamental rights unless it's express i think it would be a much harder case i don't think there would be any problem is that it is in terms of the law making authority kentucky it's a supreme court you know we make these rules through the courts as we did in this case and i just i guess i just don't see i don't think you've we haven't come up with a distinction that persuades me and that's your order because i think is justice kagan said we have to assume the kentucky supreme court is acting in good faith so your answer is there is nothing wrong with that statute well and i think i think the statute does whether it covers arbitration or not when if a court holds that it does cover arbitration you have to look to see whether the other things in there are like arbitration sufficiently or there are other things that aren't covered that are like arbitration sufficiently so that you could at the end draw a conclusion that this is or is not discriminate there's nothing else in there it did the first act time of the first time the statute is applied it happens to be to an arbitration case it happens to be to this case but you can't say oh look at the background of it it's all about hostility to arbitration you can't well i guess to answer is just to return to this case for a minute i don't think that's the rule that's being applied i think it's clear because the instances of fundamental rights that were identified were one just like ours you understand that when your first answer is let's go to this case that not the most compelling was i understand your honor but but i and to answer the question more broadly i do think there's a there's a question that the court would have to answer in that circumstance whether as justice pryor put it more eloquently than i did that that arbitration is being included in that category not because of some special characteristic of arbitration but because arbitration agreement have the same characteristics as all of those other things and i would you do that that's the position that you and maybe just as briard how would you how would you go about that how would i say it we've got to decide why arbitration is being included in this well and i would say as an advocate at least that the problem with that judgment is that what congress said in the f a a is in fact you can't say that arbitration agreements should be treated like some special category of contracts just because of  characteristic of arbitration there has to be another reason and what the state is doing there is saying arbitration is especially significant because of a characteristic it waives the jury right that is intrinsic to arbitration and i think that conflicts with the federal policy so yes the state could say that with all fundamental rights my argument would be it can't do that with respect to yes arbitration and i might lose the standard question better o course the legislature could enact such statute to if we have our first case arbitration and they say arbitration is included among that then what we're job is is to read the opinion now sometimes courts don't write enough in the opinion for us to make the decision as to whether or not it is being discriminated against in which case we send it back and ask them to write more so is that what we should do yes or no and your time is  i think you have enough here now you think you can dance or i think the answer is no because i think there's enough in this opinion i think for the reasons indicated in just a spider's question the category here doesn't apply to all jury waivers so the argument that applies even to the waiver of a jury right is not true and it doesn't apply to all fundamental rights the examples that were given are of the most onerous kind of contract you can imagine sorry thank you