# SCOTUS just restored us to Yellow Dog contract days! **URL:** \ **Category:** Great Debates\ **Created:** [May 21, 2018, 3:13pm UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561 "2018-05-21T15:13:57Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![Chisquirrel](https://avatars.discourse-cdn.com/v4/letter/c/6bbea6/32.png) [@Chisquirrel](https://boards.straightdope.com/u/Chisquirrel)\ **Post date:** [May 22, 2018, 6:02am UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/41 "2018-05-22T06:02:20Z")
> [@Bricker](#): > > If judges weren’t partisan, then the Democrats wouldn’t have cared who Lewis Powells’ replacement was, as long as he was legally qualified. > > But a former Solicitor General of the United States was rejected, thirty years ago. BORKED in 37! Lest we rehash the entire debacle, Bork was voted against by more than Democrats. ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [May 22, 2018, 6:32am UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/42 "2018-05-22T06:32:01Z")
Such a clause would fail and probably void the whole contract. Fail on basic principles of contract long before any Arbitration issues arose. Probably attract criminal liability as well. ETA: In response to the “sex with boss” clause mentioned above. ---
**Author:** ![DavidwithanR](https://avatars.discourse-cdn.com/v4/letter/d/3bc359/32.png) [@DavidwithanR](https://boards.straightdope.com/u/DavidwithanR)\ **Post date:** [May 22, 2018, 9:09am UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/43 "2018-05-22T09:09:50Z")
> [@Lumpy](#): > > It seems to me that the larger issue (“policy” seems an inadequate description) is the conflict between the ideals of democracy and the reality of modern capitalism/ industrialism. The left’s ideological stance since the 1930’s has been that the interests of the people need protection against what would otherwise be the overwhelming power of plutocracy; that strict _laissez faire_ would lead to a modern version of serfdom. Thus you have not only labor laws but also things like campaign donation laws. This is I think one of the major unresolved issues of our society. Look around; your “would otherwise…” has already happened. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [May 22, 2018, 1:01pm UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/44 "2018-05-22T13:01:00Z")
> [@Whack-a-Mole](#): > > I do not think it makes arbitration illegal. However, it does say this (highlighting mine): > > That, to me, would seem to allow them to engage in a class action lawsuit against their employer. Under your interpretation, it would mean that the employees could form a mob and fire bomb the home of the boss that they don’t like? If this law impliedly repeals the FAA, does it not also impliedly repeal any laws against violence? After all, that would restrain their right to “engage in other concerted activities.” Since a group firebombing of a home is an “other concerted” activity, then Congress clearly meant to repeal any prior law forbidding it. I understand it is an absurd example, but one that would logically follow if the dissent’s view was adopted. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [May 22, 2018, 2:24pm UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/45 "2018-05-22T14:24:11Z")
> [@UltraVires](#): > > Under your interpretation, it would mean that the employees could form a mob and fire bomb the home of the boss that they don’t like? What? Where do you think anything I said or the NRLA says implies approval for illegal behavior? Do you really think when congress wrote, _“to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection”_, they meant it to include mobs and firebombing? ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [May 22, 2018, 2:32pm UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/46 "2018-05-22T14:32:20Z")
> [@Whack-a-Mole](#): > > What? > > Where do you think anything I said or the NRLA says implies approval for illegal behavior? > > Do you really think when congress wrote, “to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection”, they meant it to include mobs and firebombing? In short, your claim is that Congress passed two laws: 1. The FAA which allows and shows a preference for arbitration agreements 2. The NLRA which allows employees “to engage in other concerted activities” Your argument (and correct me if I am misstating it) is that Congress must have meant to repeal the FAA at least as it applies to the NLRA otherwise employees couldn’t engage in “other concerted activities” like class action lawsuits, correct? My hypothetical is that Congress passes these two laws: 1. A federal law against firebombing. 2. The NLRA (with the same provision as above). Under your argument, wouldn’t the same language act as a repealer of the firebombing statute? ETA: I think it is clear that “other concerted activities” are not meant to be unlimited despite the existence of prior law. It did not mean to repeal the FAA, and such an interpretation is consistent with case law. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [May 22, 2018, 4:38pm UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/47 "2018-05-22T16:38:53Z")
> [@Little\_Nemo](#): > > Let’s apply that principle. The Eighth Amendment prohibits “cruel and unusual punishments”. Does that law therefore prohibit drawing and quartering? Apparently not. Drawing and quartering was an [accepted historical legal punishment](https://en.wikipedia.org/wiki/Treason_Act_1351). And the Eighth Amendment didn’t explicitly include it in its blanket prohibition. According to your argument, if Congress had meant to ban drawing and quartering as a cruel and unusual punishment, it would have specifically said so. > > I disagree with this interpretation. When a law is enacted which bans a broad category of actions as illegal, it includes all of those actions - even if it doesn’t list them all individually. You know, if you’re going to argue by analogy, it helps if you make your cases analogous. 😉 In this case, we have one statute written after a second statute. The first has a specific provision regarding arbitration clauses; the second has a generalized statement about actions that is being inferred to include a ban on those arbitration clauses. For your example to have analogous value, the situation would have to be that the Constitution specifically says, “You can draw and quarter people,” and the Eighth Amendment would then come along later. Then the question would be, did the general ban on “cruel and unusual punishment” impliedly over-ride the provision of the Constitution permitting drawing and quartering people. The answer, of course, is that, applying the same construction/interpretation rules used by the court here, no, it wouldn’t. ---
**Author:** ![DavidwithanR](https://avatars.discourse-cdn.com/v4/letter/d/3bc359/32.png) [@DavidwithanR](https://boards.straightdope.com/u/DavidwithanR)\ **Post date:** [May 22, 2018, 4:47pm UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/48 "2018-05-22T16:47:46Z")
> [@AK84](#): > > Such a clause would fail and probably void the whole contract. Fail on basic principles of contract long before any Arbitration issues arose. Probably attract criminal liability as well. > ETA: In response to the “sex with boss” clause mentioned above. Well, the point was that having a mandatory arbitration clause in a contract causes the contract to fail on basic principles of contract also, since mandatory arbitration abrogates the employee’s right to negotiate. ---
**Author:** ![DavidwithanR](https://avatars.discourse-cdn.com/v4/letter/d/3bc359/32.png) [@DavidwithanR](https://boards.straightdope.com/u/DavidwithanR)\ **Post date:** [May 22, 2018, 5:31pm UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/49 "2018-05-22T17:31:58Z")
My reasoning is encapsulated in this: “Ah, but this is different from other imposed contracts - you **freely negotiated** _this_ imposed contract” … When the parties aren’t free to negotiate, it isn’t even a contract. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [May 22, 2018, 8:31pm UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/50 "2018-05-22T20:31:48Z")
> [@UltraVires](#): > > My hypothetical is that Congress passes these two laws: > > 1. A federal law against firebombing. > 2. The NLRA (with the same provision as above). > > Under your argument, wouldn’t the same language act as a repealer of the firebombing statute? > > ETA: I think it is clear that “other concerted activities” are not meant to be unlimited despite the existence of prior law. It did not mean to repeal the FAA, and such an interpretation is consistent with case law. This is just a weird analogy and not remotely akin to this issue. As it happens though it is the Supreme Court which has dramatically expanded the FAA far from what it was originally set to do. If you want to see the judicial activism look to the likes of what Gorsuch and his ilk have done. Earlier I mentioned that it seems odd it had taken over 80 years for us to be arguing how the NLRA is stomping on the FAA. Well, it has taken this long because the Supreme Court has, since the 80’s, been expanding the reach of the FAA well beyond where it started. Expanded it so far it is only now that they can make the case it impinges on the FAA. > [@](#): > > The current arbitration epidemic is a result of judicial developments that began in the 1980s, when the U.S. Supreme Court reinterpreted a little-known federal law enacted in 1925 called the Federal Arbitration Act (FAA). The FAA provides that when a dispute involves a contract that has a written arbitration clause, a court must, upon motion, stay litigation so that the dispute can go to arbitration.4 And after an arbitration proceeding is complete, the FAA gives courts extremely limited power to review arbitral awards, no matter how erroneous they might be. Under the statute, an award can only be set aside on four grounds: it was procured by fraud, the arbitrator was biased, the arbitrator refused to hear relevant evidence, or the arbitrator exceeded his or her power as set out in the parties’ arbitration agreement. Each of these has been interpreted exceptionally narrowly. There is no provision for overturning an award based on errors of fact, contract interpretation, or law. > > Initially, the drafters, commentators, and the courts assumed that the FAA applied only to a narrow range of commercial disputes—those brought in a federal court pursuant to its power to decide issues arising under federal law. However, in the 1980s the U.S. Supreme Court radically expanded the scope of the statute. Today courts interpret the statute to apply to disputes of all types, whether brought in a federal or a state court. Moreover, the Supreme Court has held that the FAA overrides any state law that runs counter to the pro-arbitration policies of the FAA. It is important to recount the path by which this transformation occurred because it shows how entrenched the current interpretation has become and how overwhelming are the obstacles to change under the statute as currently interpreted. This, in turn, explains why new congressional action is necessary. > > SOURCE: [The arbitration epidemic: Mandatory arbitration deprives workers and consumers of their rights | Economic Policy Institute](https://www.epi.org/publication/the-arbitration-epidemic/) That link above does a far better job than I can ever do of laying this all out. It is very, very long and very thorough. I highly recommend anyone interested in this have a look at it. When we consider that Gorsuch says the court’s purpose is to harmonize the laws yet we see him gutting the NLRA and repeatedly boxing employees out of the legal system to seek remedies it is hard to see how protecting the FAA is the thing to do here. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [May 22, 2018, 8:41pm UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/51 "2018-05-22T20:41:49Z")
> [@Whack-a-Mole](#): > > When we consider that Gorsuch says the court’s purpose is to harmonize the laws yet we see him gutting the NLRA and repeatedly boxing employees out of the legal system to seek remedies it is hard to see how protecting the FAA is the thing to do here. In what way do you think the NLRA was gutted? I just don’t see the basis for hyperbole here. I’ve read the whole opinion, the entire dissent. I think both make fair points and lay out their arguments well. I find the majority much more persuasive personally and I think every argument laid out opposed in this thread and by the dissent is addressed and rebutted. To each post in the thread opposed to the majority opinion, i could simply quote directly the portion of the opinion that responds to that particular point. Have you read each? So rather than speak in generalities or sweeping pronouncements, it’s much more clear to identify which portion of the opinion you disagree with. The application of statutory construction? The framing of section 7? The timing of the creation of Rule 23 for class action litigation? The other avenues for redress plaintiffs had under FLSA? Creation of substantive rights under the Rules Enabling Act? No need to venture to fanciful examples about sex with the boss or firebombing. ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [May 22, 2018, 9:16pm UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/52 "2018-05-22T21:16:12Z")
I would have thought that by now the conservative fetish for hating unions would have gone the way of Daddy Warbucks and General Bullmoose. How many times have you heard about the new CEO of GreedCo. About how investors get a tingle up their asses when they hear about how “lean and mean” he wants to be, how he is incentivized by connecting his pay to the stock price. And the voice of the turtle is heard in the land, and the turtle says “Oink!”. OK, its too late to remake General Dynamics into a worker-owned collective, sure. But we can’t do better than this bullshit? How thick do you have to be not to realize that a consumer economy depends on the working people? They got no money, they spend no money, and we’re boned. _Trés_ duh, _mais non_? ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [May 22, 2018, 9:18pm UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/53 "2018-05-22T21:18:36Z")
This has nothing to do with unions. ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [May 22, 2018, 9:35pm UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/54 "2018-05-22T21:35:34Z")
Well, would you say that it has some bearing on worker/employer relations, and the relative empowerment of the actors? If you stretch way out there? Is it hard for you to accept that the conservative movement in America has been firmly on one side of that? ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [May 22, 2018, 11:05pm UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/55 "2018-05-22T23:05:24Z")
> [@Whack-a-Mole](#): > > This is just a weird analogy and not remotely akin to this issue. > > As it happens though it is the Supreme Court which has dramatically expanded the FAA far from what it was originally set to do. If you want to see the judicial activism look to the likes of what Gorsuch and his ilk have done. > > Earlier I mentioned that it seems odd it had taken over 80 years for us to be arguing how the NLRA is stomping on the FAA. Well, it has taken this long because the Supreme Court has, since the 80’s, been expanding the reach of the FAA well beyond where it started. Expanded it so far it is only now that they can make the case it impinges on the FAA. That’s not really responsive to my post. Of course the firebombing example was meant to be extreme. Suppose a state law said that no more than two people can be on a motorcycle. Three people are riding on a motorcycle to a union meeting. Has the NLRA preempted that law because it interferes with the statutory privilege for those three people to engage in “other concerted activities”? If you agree that it doesn’t go that far, then you agree that the term “other concerted activities” has some limitation to it. Perhaps only those concerted activities that are otherwise legal? And if the FAA has shown a preference for arbitration and said that arbitration contracts are great, then perhaps this “other concerted activities” statement doesn’t overrule that? ---
**Author:** ![DavidwithanR](https://avatars.discourse-cdn.com/v4/letter/d/3bc359/32.png) [@DavidwithanR](https://boards.straightdope.com/u/DavidwithanR)\ **Post date:** [May 23, 2018, 3:30am UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/56 "2018-05-23T03:30:17Z")
> [@Bone](#): > > In what way do you think the NLRA was gutted? I just don’t see the basis for hyperbole here. I’ve read the whole opinion, the entire dissent. I think both make fair points and lay out their arguments well. I find the majority much more persuasive personally and I think every argument laid out opposed in this thread and by the dissent is addressed and rebutted. To each post in the thread opposed to the majority opinion, i could simply quote directly the portion of the opinion that responds to that particular point. Have you read each? > > So rather than speak in generalities or sweeping pronouncements, it’s much more clear to identify which portion of the opinion you disagree with. The application of statutory construction? The framing of section 7? The timing of the creation of Rule 23 for class action litigation? The other avenues for redress plaintiffs had under FLSA? Creation of substantive rights under the Rules Enabling Act? No need to venture to fanciful examples about sex with the boss or firebombing. Tinkering (correctly) with one subset of the particulars, does not automatically generate a balanced approach overall. Getting the sweeping generalities all wrong while tinkering with the particulars is a stupid mistake. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [May 23, 2018, 4:03am UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/57 "2018-05-23T04:03:03Z")
> [@DavidwithanR](#): > > Tinkering (correctly) with one subset of the particulars, does not automatically generate a balanced approach overall. > > Getting the sweeping generalities all wrong while tinkering with the particulars is a stupid mistake. Sounds like fortune cookie wisdom. Do you have anything of substance to offer? ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [May 23, 2018, 5:55am UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/58 "2018-05-23T05:55:34Z")
I am but a boor of little brain, and less sheepskin. Perhaps I should be advised, so that I understand that the conservatives are fraught with concern for the working man, the employee, and eager to protect and even enhance his position relative to employer. It is true that I have seen little evidence of that, but am always willing to be astounded. Oh, dear, I do hope that a concern for justice and equality can be accepted as having “substance”? ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [May 23, 2018, 2:16pm UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/59 "2018-05-23T14:16:18Z")
The SCOUTS doesn’t, and shouldn’t, concern itself with whether conservatives care enough about the working man. In this case, they are asked to interpret the law. Which is what they did. We, the people, should care about such things of course, and we elect our Congresscritters accordingly. But, as we all know, democracy doesn’t always get each of us what we want. I don’t want the SCOTUS to tell us when we did things incorrectly according to their own person code of ethics. YMMV, and I suspect it does. ---
**Author:** ![postpic200](https://avatars.discourse-cdn.com/v4/letter/p/54ee81/32.png) [@postpic200](https://boards.straightdope.com/u/postpic200)\ **Post date:** [May 23, 2018, 2:26pm UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/60 "2018-05-23T14:26:36Z")
> [@Snowboarder\_Bo](#): > > I’ll be glad to be shown otherwise, but I’m pretty sure [the recent SCOTUS decision](https://apnews.com/09877f4fcf454c59a74b0d066536d15e/Divided-Supreme-Court-rules-for-businesses-over-workers) just invalidated the Norris-LaGuardia Act and restored us to the 1920s norm of allowing employers to dictate when people can and cannot exercise their free association rights. > > This is not a good decision for America. > The new guy wrote the majority decision:RBG wrote for the dissent, natch. This may end up as a big win for unions. If people can’t use class action lawsuits because they are forced into arbitration, then only real option for the workers is to unionize. That would give them the protection of the union and the union would be going to bat for their members. A business who violated the union contract would be looking at a strike, the a disruption of their business. This will also give unions a big talking point when trying to convince people to join a union. “The law won’t protect you, but we will.” or “You’ll have the backing of the union when you go into arbitration.” Really, business might think this is a win, but I think in the end they will regret this decision. [Previous page](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561.md?page=2) [Next page](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561.md?page=4)