Mikey's Houses LLC v. Bank of America, N.A.

I respectfully dissent to the majority opinion in several respects.

No Starting Presumption Against Waiver

First, I question the applicability of a presumption against waiver in a case such as this, in which the parties entered into a contract containing a jury waiver provision. The case the majority cites for the proposition that every reasonable presumption against waiver should be indulged, Aetna Insurance Co. v. Kennedy, is a 1937 Supreme Court case dealing with whether a party could waive its Seventh Amendment right to a jury trial by its *160conduct during trial. 301 U.S. 389, 393, 57 S.Ct.…