Sisters of the Visitation v. Cochran Plastering Co.

The Sisters of the Visitation (hereinafter usually “the Sisters”) appeal from the trial court’s order enjoining the arbitration proceeding initiated by the Sisters in a dispute with Cochran Plastering Company, Inc. (hereinafter “Cochran”). The Sisters of the Visitation is a Catholic religious order that owns and operates a monastery and spiritual retreat in Mobile. The Sisters began a restoration project to repair and restore the chapel at the Visitation Monastery. The Sisters engaged the services of Hall Baumhauer Architects, P.C., an Alabama company, and entered into contracts directly with contractors, from Alabama and several other states, within specific trades included in the scope of work for the project.

The Sisters entered into a contract with Cochran, an Alabama company, for Cochran to repair cracks in the plaster in the ceilings and wall of the chapel, to cast and install plaster moldings, and to pin up all loose moldings with screws and washers. This contract included an arbitration provision, pursuant to which the Sisters filed a demand for arbitration; in the demand for arbitration, the Sisters claimed that Cochran had negligently damaged decorative paintings on the surface of the chapel ceilings and wall and that Cochran had failed to complete its work. The Sisters claimed a total of $525,000 for restoration of paintings they claimed Cochran had damaged and $50,000 for the completion of the repair work.

Cochran filed an action in the circuit court for an injunction to stop the arbitration proceeding, claiming that the arbitration provision is unenforceable, pursuant to Ala.Code 1975, § 8-1-41(3), because, it argues, the contract between it and the Sisters did not involve interstate commerce. Cochran further contends that the Sisters’ claims are precluded by the clause in the arbitration provision that specifically exempts from arbitration claims relating to “aesthetic effect.”

The issues raised on appeal are: (1) whether the arbitration clause in the contract between the Sisters and Cochran is made enforceable by the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1 et seq., and (2) whether the claims made by the Sisters against Cochran constitute claims relating to “aesthetic effect,” which are expressly excluded from the operation of the arbitration clause. Because we affirm the trial court’s order enjoining the arbitration proceedings, we do not reach the second issue, concerning the scope of the arbitration agreement.

The FAA, at 9 U.S.C. § 1, defines “commerce,” as that term is used within the FAA, as including “commerce among the several States or with foreign nations.” Section 2 declares arbitration agreements in “a contract evidencing a transaction involving commerce” to be valid and enforceable, “save upon such grounds as exist at law or in equity for the revocation of any contract.” In Allied-Bruce Tenninix Companies v. Dobson, 513 U.S. 265, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995) (“Termi-nix ”), the United States Supreme Court held that for an arbitration clause to be enforceable under the FAA the transaction to which the contract relates must turn out, in fact, to involve interstate commerce, regardless of the contemplation of the parties. Id. at 278, 115 S.Ct. 834.

The United States Supreme Court, in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), considered the extent of interstate involvement an activity must have in order for it to be within the bounds of Congress’s authority under the Commerce Clause of the United States Constitution. The Supreme Court decided Lopez shortly after it had decided Tenninix. In Lopez, the Court, for the first time in 60 years, struck down an act of Congress (the Gun-Free School Zones Act) on. the basis that the act exceeded Congress’s Commerce Clause authority. In Lopez, Chief Justice Rehnquist broke down the previous Commerce Clause cases into three categories of things that Congress has regulated under that clause: channels of interstate commerce (by laws freeing channels of commerce from discrimination, immoral activities, etc.); in-strumentalities of interstate commerce (by laws regulating safety of vehicles used in interstate commerce); and activities having a substantial relation to commerce. Lopez, 514 U.S. at 558-59, 115 S.Ct. 1624. After establishing those categories, the Chief Justice acknowledged an absence of clarity in the cases dealing with the question whether, for an activity to be subject to Congressional regulation under the Commerce Clause, the activity must “affect” or must “substantially affect” interstate commerce. Id. at 559, 115 S.Ct. 1624.

One attempting to clarify the area of the law in which that question arises must consider Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942). In that case, an Ohio farmer raised wheat on 23 acres of land. He consumed most of the wheat on his farm, either by feeding it to livestock, making flour for personal use, or using it to produce seeds for future crops. The Secretary of Agriculture assessed a penalty against the farmer for exceeding by 12 acres his allotment under a federal statute regulating wheat production. The Supreme Court upheld the assessment, holding that the Congress’s limitation of the farmer’s wheat production was a valid exercise of its authority under the Commerce Clause to regulate interstate commerce. Unless Wickard is either overruled or read narrowly, very little that occurs in this country can be viewed as not having some involvement with interstate commerce. The Court in Lopez, after reviewing Wickard, acknowledged that it was inappropriate to make an excessively elastic application of the Commerce Clause. It stated that for an economic activity to come within Congress’s authority under the Commerce Clause the activity must “substantially affect” interstate commerce. 514 U.S. at 559, 115 S.Ct. 1624.

The Lopez Court referred to the requirement of a substantial effect as generally applicable to regulation of economic activity. Id. at 560, 115 S.Ct. 1624. That broad reference, albeit dictum, does not suggest that the requirement of a substantial effect would not apply to the question whether a particular contract is subject to the FAA. We have recently embraced the concept that the Lopez requirement of a substantial effect governs the question whether a particular contract has a sufficient connection with interstate commerce to be governed by the FAA. See Southern United Fire Ins. Co. v. Knight, 736 So.2d 582 (Ala.1999) (Houston, Kennedy, Lyons, Brown, and Johnstone, JJ., concurring; See, J., concurring specially; Cook, J., concurring in the result; and Hooper, C.J., and Maddox, J., dissenting); and Rogers Foundation Repair, Inc. v. Powell, 748 So.2d 869 (Ala.1999) (Hooper, C.J., and Maddox, Cook, Brown, Johnstone, and England, JJ., concurring; See, J., concurring specially; Lyons, J., concurring in two of the three cases addressed in that opinion and concurring in the result in the third; and Houston, J., concurring in two of the cases).

The Chief Justice, in his dissent, relies on a case decided December 2, 1999, In re L & L Kempwood Associates, L.P., 9 S.W.3d 125 (Tex.1999), as supporting his view that the Lopez requirement of a substantial effect on interstate commerce does not apply to arbitration cases arising under the FAA. The Chief Justice quotes that part of the L & L Kempwood opinion in which the Supreme Court of Texas states that “[t]he other courts to consider this issue of which we are aware have [agreed with the view that Lopez did not restrict the scope of the FAA].” 9 S.W.3d at 127 (quoted infra at 775 So.2d 771). The Texas Supreme Court’s footnote to that statement cites just two cases. One was a case from the Texas Court of Appeals in Fort Worth, Palm Harbor Homes, Inc. v. McCoy, 944 S.W.2d 716 (Tex.App.Fort Worth 1997, orig. proceeding); the other was this Court’s four-justice opinion in Hurst. It overlooks a case decided November 23,1999, In re Turner Brothers Trucking Co., 8 S.W.3d 370 (Tex.App.-Texarkana 1999) (a case from another Texas Court of Appeals), which stated:

“The Texas courts of appeals have split on the issue of whether ‘affect’ or ‘substantially affect’ interstate commerce determines whether an arbitration agreement is subject to the federal or state statute. In Palm Harbor Homes, Inc. v. McCoy, 944 S.W.2d 716 (Tex.App.-Fort Worth 1997, orig. proceeding), the Fort Worth court held that the ‘affect commerce’ language of Allied-Bruce Terminix was not changed by the subsequent Lopez decision:

“ ‘The extent of Congress’ power to legislate is not at issue here; unlike in Lopez, the Goldens have not challenged the constitutionality of the FAA. Thus, the only issue we must address is the [sic] how broad Congress intended the term “involving commerce” to be. We follow the Supreme Court in holding that a transaction involves commerce under the FAA if it “in fact” affects interstate commerce. Allied-Bruce, 518 U.S. at 268-70, 115 S.Ct. 834....’

“[944 S.W.2d] at 720.

“On the other hand, the Corpus Christi court of appeals has determined that the language of Lopez specifically holds that Congress may regulate, under the Commerce Clause, only activities ‘substantially affecting’ interstate commerce. L & L Kempwood Assocs. [v. Omega Builders, Inc.], 972 S.W.2d [819,] 821-22 [ (TexApp.-Corpus Christi 1998, no pet.) ]; see also Ikon Office Solutions, Inc. v. Eiferb, 2 S.W.3d 688 (Tex.App.-Houston [14th Dist.] 1999, orig. proceeding); Russ Berrie and Co. [v. Gantt], 998 S.W.2d [713,] 715 [ (Tex.App.-El Paso 1999, no pet. h.) ]. The L & L Kempwood case met the issue head on, acknowledging Palm Harbor and other authority to the contrary, stating:

“‘Therefore, whether “the extent of Congress’s power to legislate” has been exceeded, which the Palm Harbor court thought was not at issue, is actually an element that must be established in every case before the FAA applies. Allied-Bruce held that, in establishing the FAA, Congress intended to extend the jurisdiction of the law to the maximum extent permitted under the Commerce Clause. Allied-Bruce, [513 U.S. at 274, 115 S.Ct. 834], This aspect of Allied-Bruce remains intact after Lopez. The significant modification of the Allied-Bruce analysis that results from Lopez is that, after Lopez, the Commerce Clause permits Congress’s jurisdictional [sic] to reach only as far as matters that “substantially affect” interstate commerce.’

“L & L Kempwood Assocs., 972 S.W.2d at 822 (emphasis added).

“Both the El Paso court in Berrie and the Corpus Christi court in Kempwood reviewed the record to determine whether the underlying transaction evidenced a substantial effect on interstate commerce. Russ Berrie and Co., 998 S.W.2d at 715-16; L & L Kempwood Assocs., 972 S.W.2d at 822. Both courts concluded that they did not and held the federal statute inapplicable.

“We believe the reasoning of the L & L Kempwood decision is more in keeping with the Supreme Court’s Lopez decision. Therefore, we conclude that it was Turner Brothers’ burden to show that the contract in issue had a substantial effect on interstate commerce.”

8 S.W.3d at 375-76 (emphasis added). We prefer the reasoning of the court in Turner Brothers Trucking, a decision of which the Supreme Court of Texas was clearly unaware when it decided L & L Kemp-wood, which was released just a few days after Turner Brothers Trucking was decided.

In Lopez, the Court cited NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37, 57 S.Ct. 615, 81 L.Ed. 893 (1937), in which the Supreme Court had warned that the scope of the Commerce Clause

“must be considered in light of our dual system of government and may not be extended so as to embrace effects upon interstate commerce so indirect and remote that to embrace them, in view of our complex society, would effectually obliterate the distinction between what is national and what is local and create a completely centralized government.”

Lopez, 514 U.S. at 557, 115 S.Ct. 1624. Considering that the “complex society” in 1937, when Jones & Laughlin Steel was decided, judged by comparison to contemporary society, based, as it is, on a much more advanced technology, was perhaps slightly more than quaint, the danger the Court saw then has been multiplied today many times over.

Because Wickard was by no means overruled in Lopez, we must consider it in depth. The Agricultural Adjustment Act of 1938 had as one of its primary purposes increasing the market price of wheat by reducing the supply. Exempting all home-consumed wheat from the operation of the Act would substantially influence the Government’s efforts to control supply and thereby to control, price. Wickard, 317 U.S. at 128, 63 S.Ct. 82. Viewing Wickard in this light, we conclude that the question whether the actions of an individual, which actions standing alone would be considered “local” actions or actions with only an “indirect” influence on interstate commerce, may be considered to have a substantial influence on interstate commerce is to be determined by considering how critical the regulation of all similarly situated persons’ activity is to the accomplishment of the primary purpose of a statute drawn to regulate an activity clearly having a substantial effect on interstate commerce. Id.

The obvious primary purpose of the FAA is to make enforceable arbitration agreements appearing in contracts “evidencing a transaction involving commerce.” Will it defeat the primary purpose of the FAA if some transactions occurring in today’s complex society, although they have some “indirect or remote” effect upon interstate commerce, escape the sweep of the FAA? Put another way, even if those transactions are not subject to the FAA, will there remain a substantial body of transactions as to which the FAA will apply and as to which the Congressional purpose will be achieved? Or, on the other hand, will bringing those transactions within the scope of the FAA “obliterate the distinction between what is national and what is local”? See Jones & Laughlin Steel, 301 U.S. at 37, 57 S.Ct. 615.

One cannot seriously argue that unless all transactions, some of which by themselves might have only a local influence or at most an indirect connection to interstate commerce, come within the scope of the FAA, that Act will become some sort of scarecrow, lacking substance and a field of operation, so that Congress’s primary purpose will be defeated. Such an expansive application of the FAA would tend to defeat the doctrine of federalism, making that doctrine a hollow shell. To recognize such a wide sweep of federal authority would stifle the States’ interest in, or efforts toward, developing creative solutions to other common problems. Alabama has a robust alternative-dispute-resolution program whereby trial judges routinely call on the parties to a lawsuit to attempt to resolve their differences with the aid of a mediator, whose proposals are not binding on the parties. Whether this alternative-dispute-resolution approach is superior to arbitration is not the issue; rather, the question is whether the Commerce Clause should tolerate a State’s efforts, in regard to transactions having a less-than-substantial effect on interstate commerce, to try solutions other than those that catch the fancy of Congress.

Developing a test for determining whether a particular contract has a substantial effect on interstate commerce is challenging, but it is essential, because we cannot appropriately say of such an effect, as Justice Stewart suggested we might be able to say of hard-core pornography, “I know it when I see it.” Jacobellis v. Ohio, 378 U.S. 184, 197, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964) (Stewart, J., concurring). We can start with a description of a transaction that one almost intuitively finds lacking the effect on interstate commerce that the Framers contemplated and, then, through a process of reverse engineering, break it down into components and thereby develop a set of standards.

Consider a hypothetical transaction involving a farmer who owns a tractor that he purchased from a local dealer. The farmer earns a substantial portion of his annual income through contracts with other local landowners, contracts calling for him to use the tractor to mow their pasture land and to occasionally rake and burn limbs, leaves, and grass clippings. He purchases gasoline to operate the tractor and diesel fuel to start the trash fires. The other landowners have crops that they regularly harvest and ship in interstate commerce, but this farmer is not involved in any activity relating to those crops other than his clearing the land so that the others might thereafter plant their crops. One can hardly say that to permit this farmer’s transactions and those of all persons similarly situated to escape the sweep of the FAA would frustrate the primary purpose of that Act. A substantial universe of contracts would remain within the scope of the FAA even if this class of transactions is set outside that scope, and by setting these transactions outside that scope what is local would remain local and would escape control by a centralized government.

This hypothetical transaction — an agreement by the farmer to do work for another local landowner — might contain the following components: (1) a contract solely between two local parties, both of them engaging in activities that do not involve any person or entity in another State; (2) tools and equipment, which, although they moved in interstate commerce, were not purchased or leased solely for the farmer to perform the particular contract at issue; (3) substantially more than half of the amount paid to the farmer by the other landowner is allocable to the cost of the services rendered by the farmer, who renders those services without using persons or entities from another State, while substantially less than half of the amount paid is allocable to the cost of materials specially purchased for use or consumption in the farmer’s performance of the contract; (4) the object of the services is incapable of subsequent movement across State lines or otherwise having a subsequent substantial effect on interstate commerce; (5) such a degree of separability from any contracts that are subject to the-FAA that allowing this contract to remain outside the scope of the Act would not substantially disrupt activities that Congress intended to be subject to the Act.

The United States Supreme Court, as previously noted, held in Terminix, supra, that, to be subject to the FAA, a contract must relate to a transaction that in fact involves interstate commerce, even if the parties, when they entered the contract, did not contemplate the involvement with interstate commerce. 513 U.S. at 281, 115 S.Ct. 834. Because it is the Sisters who seek to compel arbitration, they have the burden of proving that the transaction in this case affected interstate commerce. See Transouth Fin. Corp. v. Bell, 739 So.2d 1110, 1114 (Ala.1999). We look at this transaction in light of these principles.

I. Citizenship of the Parties

The Sisters of the Visitation and Cochran are both Aabama residents, and the contract was to be performed in Aa-bama. The only affiliation of any of the parties with out-of-state entities is found in the relationship between the Sisters and the Roman Catholic Church. We are simply not prepared to recognize that relationship as commercial activity in interstate commerce, analogous to the network of Terminix franchises across the country. See Terminix, 513 U.S. at 282, 115 S.Ct. 834. This transaction involves a contract solely between two local parties, each of whom is unaffiliated with an entity involved in interstate commerce.

II.Tools and Equipment

One must assume that Cochran brought tools and equipment to the project site, but the record is silent as to whether they were leased or purchased specially for the project and, if so, whether they had moved in interstate commerce. In connection with this project, a substantial contract for the rental of scaffolding was placed with an out-of-state party; however, it appears that this contract did not involve Cochran but was let directly by the Sisters. No substantial effect on interstate commerce can be developed based on Cochran’s acquiring in interstate commerce any tools and equipment to be used in the performance of this contract.

III.Allocation of Cost of Services and Materials

We have no indication that Cochran employed out-of-state workers, so we assume that its workers were local. The contract apparently specified the use of plaster and washers that were required to be obtained from outside the State, and it called for insurance, which was obtained from an insurance company from outside the State. However, the record provides no information from which we can determine what portion of the amount the Sisters paid Cochran is allocable to the cost of local labor and overhead and what portion is allocable to materials or services specially purchased for use or consumption nTper-formance of the contract. The Sisters have not presented sufficient evidence to justify the conclusion that Cochran’s contract substantially affects interstate commerce by reason of a dependence upon materials and services moving in interstate commerce.

IV.Subsequent Movement Across State Lines

The object of the services provided by Cochran is incapable of subsequent movement across state lines or of otherwise having a subsequent substantial effect on interstate commerce. The Sisters contracted with Cochran to perform plaster work in the Visitation Monastery Chapel in Mobile, Alabama. The work to be performed included repairing cracked plaster in the ceilings and walls, installing plaster moldings, and pinning loose moldings. Cochran’s work becomes a part of the structure of the Visitation Monastery Chapel and it cannot be detached from the chapel and moved across state lines. The fact that people from out of the State might have visited the site later is too tenuous a connection with interstate commerce. Therefore, we conclude that Cochran’s work will not have a subsequent effect on interstate commerce.

V.Degree of Separability From Other Contracts

The Sisters entered into a series of contracts for the restoration of a chapel. The scope of the entire project included installing a fire-alarm system and electrical wiring; filling cracks in plaster walls; pinning up loose plaster moldings on the ceiling of the chapel; restoring painted ornamental decorations on the plaster walls and ceiling following plaster repairs; installing heating, ventilation, and air-conditioning duct-work and equipment; restoring stained glass windows; removing and restoring statuary and framed paintings; and erecting scaffolding covering the entire floor space. The contract with Cochran called for Cochran to perform plaster work pursuant to specifications prepared by a resident of Texas who traveled to Mobile for the purpose of studying the plastering project and writing the specifications for it. Cochran’s payment under the contract constituted 10% of the entire cost of the project.

Cochran’s contract is related to several other contracts, apparently also made directly with the Sisters, including a contract with the architect for the chapel project; contracts with workers in the various trades whose work was called for in the foregoing description of the scope of the work; and a contract with the Texas resident who prepared the speeifiea-tions for the plaster work. The fact that several of the related contracts have a substantial effect on interstate commerce cannot be seriously disputed. However, we should not hold that the proximity of this particular contract to contracts substantially affecting interstate commerce is determinative, lest we err by expanding the Commerce Clause to the point of “effectually obliterating] the distinction between what is national and what is local.” Jones & Laughlin Steel, 301 U.S. at 37, 57 S.Ct. 615.

Heeding the Supreme Court’s teaching in Terminix — that for a contract to be subject to the FAA the transaction to which the contract relates must turn out, in fact, to involve interstate commerce — we must look to the effect Cochran’s contract will in fact have on those other contracts that do have a substantial effect on interstate commerce, if Cochran’s contract is held to fall outside the reach of the FAA and thus be subject to state-law defenses to the enforcement of arbitration clauses. The record before us does not clearly indicate whether the repair-and-restoration project is complete, although the materials before us refer to costs incurred in corrective work made necessary by Cochran’s alleged breach; those references indicate that the project has been completed. In any event, the Sisters do not contend that the delays or distraction attendant to litigation, as opposed to the ostensibly simpler mode of dispute resolution afforded by arbitration, would disrupt the performance of the other contracts that have a substantial effect on interstate commerce. Therefore, recognizing the separability of this economic activity between the Sisters and Cochran does not substantially disrupt those activities that are subject to the FAA, because Cochran’s contract cannot be said to substantially affect interstate commerce by reason of its impact on other contracts that do substantially affect interstate commerce.

The Sisters have not proven that the transaction substantially affects interstate commerce and, therefore, the contrary rule of the FAA does not displace Ala.Code 1975, § 8-1-41(3), prohibiting the specific enforcement of a predispute arbitration agreement.

AFFIRMED.

HOUSTON, COOK, JOHNSTONE, and ENGLAND, JJ., concur.

BROWN, J., concurs in the result.

HOOPER, C.J., and MADDOX and SEE, JJ., dissent.

. See Edmond Seferi, FAA and Arbitration Clauses — How Far Can It Reach? The Effect of Allied-Bruce Terminix, Inc. v. Dobson, 19 Campbell L.Rev. 607, 617 (1997).

. The Gun-Free School Zones Act, 18 U.S.C. § 922(q)(2)(A) (1988), made it a federal crime “for any individual knowingly to possess a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the individual knows, or has reasonable cause to believe, is a school zone.”

. Justice Maddox, in his dissent, says we have followed the wrong Lopez case. In Home Buyers Warranty Corp. II v. Lopez, 513 U.S. 1123, 115 S.Ct. 930, 130 L.Ed.2d 876 (1995), cited by Justice Maddox, the United States Supreme Court vacated this Court's judgment in Lopez v. Home Buyers Warranty Corp., 628 So.2d 361 (Ala.1993), stating only that it remanded the case "for further consideration in light of Allied-Bruce Terminix Cos. v. Dobson." However, in Lopez v. Home Buyers Warranty Corp., this Court had examined the contemplation of the parties at the time they executed the contract as to whether that contract would involve interstate commerce. In Ter-minix, the Supreme Court expressly repudiated an interpretation of Congressional authority based on the contemplation of the parties to a contract, in favor of a "commerce-in-fact” interpretation, i.e., an interpretation that Congress has, under the Commerce Clause, the power to regulate a contract if the transaction to which the contract related in fact involved (affected) interstate commerce. 513 U.S. at 281, 115 S.Ct. 834. It appears that the dissent attaches significance to the remand in Home Buyers Warranty Corp. II v. Lopez for the wrong reason.

.The opinion in Hurst v. Tony Moore Imports, Inc., 699 So.2d 1249 (Ala.1997) (four Justices concurring and one Justice concurring in the result), declined to read Lopez's analysis as applicable to cases involving commercial transactions; a conclusion that the Lopez analysis is not applicable to such cases cannot be squared with the broad language used in Lopez. Because we are dealing with the scope of the power conferred on Congress by the Commerce Clause (and because, under Article VI of the United States Constitution, we must recognize that scope), we decline to disregard the clear dictum in Lopez.

The Chief Justice, in his dissent, concludes that we have overruled Delta Construction Corp. v. Gooden, 714 So.2d 975 (Ala.1998), and then views this Court’s efforts to grasp the trend of the United States Supreme Court's cases on the reach of the Commerce Clause as governed by principles applicable to the implications attendant to overruling Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), the seminal abortion-rights case. See dissenting opinion of Chief Justice Hooper, infra, at 773, citing Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). First, in Delta Construction, this Court, in face of evidence indicating that the contract involved had a substantial effect on interstate commerce (more than half of the contractor’s orders for materials, equipment, and supplies were obtained from out of state, and the contractor's work crews were brought from outside the state), merely noted that four Justices in Hurst had embraced the view that an intrastate transaction involves interstate commerce if it has "virtually any tangible effect on the generation of goods or services for interstate markets and their distribution to the consumer.” 714 So.2d at 978 (citing Hurst, 699 So.2d at 1255, 1257). Consequently, principles of stare decisis are not relevant. Nonetheless, even if today we are considered to have overruled Delta Construction because it simply referred to the conclusion of four Justices in Hurst, the circumstances surrounding the question whether to overrule Roe v. Wade vastly differ in kind as well as degree from the circumstances surrounding the matter before us today. Suffice it to say that the excessive caution urged in the Chief Justice’s dissent overlooks our responsibilities as judges of a State court under Art. VI of the Constitution of the United States.

. This analysis is necessarily fact-intensive and, in some respects, frustrates the laudable goal of summary and speedy disposition of the issue of arbitrability described as a component of the FAA in Terminix, 513 U.S. at 278, 115 S.Ct. 834. However, the goal of expediency cannot justify a court’s disregarding constitutional limitations on the exercise of Congressional power. Moreover, it cannot be said that Congress was motivated by the goal of expediency when it created a right to trial by jury in disputes involving questions of arbitrability. See 9 U.S.C. § 4.