# 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:** 8
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [May 30, 2018, 6:25pm UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/141 "2018-05-30T18:25:33Z")
> [@Bricker](#): > > They also said that [all escaped slaves, upon capture, must be returned to their masters and that officials and citizens of free states had to cooperate.](https://en.wikipedia.org/wiki/Fugitive_Slave_Act_of_1850) Sure, and that was passed to effectuate the Fugitive Slave Clause of the Constitution: > [@Constitution](#): > > No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due. I don’t see how it follows from that clause that a black person freed from slavery may never be a citizen. ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [May 30, 2018, 6:30pm UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/142 "2018-05-30T18:30:35Z")
It wasn’t actually the Supremes who first made corporations into actual people, right? Proving that lawyers have miraculous powers that priests can only envy. Anyway, that whole “intent” thingy is just a slightly different brand of semantic nonsense. We are often held responsible for acts that have results we don’t specifically intend, for failure to think it through. If Senator Foggybottom votes for the Crunchy Goodness Act, which promotes happiness and well-being but actually renders poor people into Soylent Brown, why should we care that he did not “intend”? And if a law is written in a way that allows someone to interpret it with malice aforethought, then the law is _intentionally_ badly done. Witness the 2nd Amendment, which does for ambiguity was Gibralter does for rocks. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 30, 2018, 6:35pm UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/143 "2018-05-30T18:35:01Z")
> [@UltraVires](#): > > Sure, and that was passed to effectuate the Fugitive Slave Clause of the Constitution: > > I don’t see how it follows from that clause that a black person freed from slavery may never be a citizen. It does not. But neither was that pronouncement necessary to resolve the issue. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 30, 2018, 6:36pm UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/144 "2018-05-30T18:36:49Z")
> [@elucidator](#): > > It wasn’t actually the Supremes who first made corporations into actual people, right? Proving that lawyers have miraculous powers that priests can only envy. No, that was Congress: 1 U.S. Code § 1, in determining the meaning of any Act of Congress, the words “person” and “whoever” include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals. ---
**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 30, 2018, 7:35pm UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/145 "2018-05-30T19:35:08Z")
> [@UltraVires](#): > > What he is saying is that it doesn’t matter what Congress intended; what matters is what they wrote. > > Why is that? Because there is no way to know how every member of Congress who voted for the bill “intended” for it to work. Even if we get quotes from the bill’s sponsor, that doesn’t mean that others who voted for it agreed with the statement. Maybe 30% of the supporters of the bill wanted it to work in this context, 30% did not, and 40% voted for the bill because they were hungover and their party leader said it was a good bill. > > So at the end of the day, you have to give effect to what was actually written instead of trying to divine intent. If the law doesn’t work as intended, Congress can change the law. They can change the law today if this is a terrible result. It is weird that you two think the words of a law are somehow always unambiguous. Apparently all the handwringing over the 2nd amendment is much ado about nothing because the simple text is clear. Nevermind justic Scalia going on at length in the Heller decision about what was “intended” when it was written. Funny because Scalia is the one judge who would agree with you about divining legislative intent but there he in Heller positively rolling in trying to figure out what was intended. Just search for “inten” [here](https://www.law.cornell.edu/supct/html/07-290.ZO.html) and you can see for yourself. Other judges do not share **Bricker’s** view of this. > [@](#): > > But lawyers also know that legislative history can work in their favor, because the truth is that Scalia is the only member of the court who always objects to its use. > > That was apparent in Example Two from last week. Justice Sonia Sotomayor wrote the court’s unanimous decision that when Congress passed the Torture Victims Protection Act allowing victims to sue for overseas atrocities, it meant that only individuals, not organizations, could be the target. > > Sotomayor acknowledged that that limited the impact of the legislation, but it reinforced the court’s view that it was what Congress wanted by citing its legislative history. During the mark-up of the bill, she wrote, one of the sponsors submitted an amendment “to make it clear we are applying it to individuals and not to corporations.” > > Scalia dutifully objected to that part of the ruling, but he was the only justice to do so. > > And some justices, such as Stephen G. Breyer, find it vital to examine legislative history. > > As he wrote in concurring with Sotomayor’s opinion: > > “The word ‘individual’ is open to multiple interpretations, permitting it, linguistically speaking, to include natural persons, corporations, and other entities . . . The legislative history of the statute, however, makes up for whatever interpretive inadequacies remain after considering language alone.” > > SOURCE: [https://www.washingtonpost.com/politics/divining-congresss-intent/2012/04/22/gIQAhBPhaT\_story.html?noredirect=on&utm\_term=.b8b4a64699fc](https://www.washingtonpost.com/politics/divining-congresss-intent/2012/04/22/gIQAhBPhaT_story.html?noredirect=on&utm_term=.b8b4a64699fc) You can argue that you think this is a bad thing to do but clearly they do it. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 30, 2018, 7:55pm UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/146 "2018-05-30T19:55:11Z")
> [@Whack-a-Mole](#): > > Other judges do not share **Bricker’s** view of this. > > You can argue that you think this is a bad thing to do but clearly they do it. Oh, I absolutely know this. Even judges nominally on the right do this. [Judge Richard Posner, late of the US Seventh Circuit Court of Appeals:](https://www.nytimes.com/2017/09/11/us/politics/judge-richard-posner-retirement.html?module=WatchingPortal®ion=c-column-middle-span-region&pgType=Homepage&action=click&mediaId=thumb_square&state=standard&contentPlacement=2&version=internal&contentCollection=www.nytimes.com&contentId=https%3A%2F%2Fwww.nytimes.com%2F2017%2F09%2F11%2Fus%2Fpolitics%2Fjudge-richard-posner-retirement.html&eventName=Watching-article-click) > [@](#): > > He called his approach to judging pragmatic. His critics called it lawless. “I pay very little attention to legal rules, statutes, constitutional provisions,” Judge Posner said. “A case is just a dispute. The first thing you do is ask yourself — forget about the law — what is a sensible resolution of this dispute?” > > The next thing, he said, was to see if a recent Supreme Court precedent or some other legal obstacle stood in the way of ruling in favor of that sensible resolution. “And the answer is that’s actually rarely the case,” he said. “When you have a Supreme Court case or something similar, they’re often extremely easy to get around.” ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [May 30, 2018, 8:04pm UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/147 "2018-05-30T20:04:20Z")
This is a goofy thread. I am ambivalent about the decision, but this was not some kind of massive war between workers’ rights and The Man. It was a rather uninteresting question of statutory interpretation that will have virtually no effect in most states (since state laws even in the South generally provide for greater damages in FLSA-analogous cases). If your state doesn’t have a treble/punitive damages provision for FLSA-type violations, blame your state legislature. ---
**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 30, 2018, 8:25pm UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/148 "2018-05-30T20:25:43Z")
> [@Really\_Not\_All\_That\_Bright](#): > > This is a goofy thread. I am ambivalent about the decision, but this was not some kind of massive war between workers’ rights and The Man. It was a rather uninteresting question of statutory interpretation that will have virtually no effect in most states (since state laws even in the South generally provide for greater damages in FLSA-analogous cases). If your state doesn’t have a treble/punitive damages provision for FLSA-type violations, blame your state legislature. Seems to me all these rulings suggest the FAA supersedes any state laws and the employee MUST go to arbitration. ---
**Author:** ![k9bfriender](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/k9bfriender/32/3283_2.png) [@k9bfriender](https://boards.straightdope.com/u/k9bfriender)\ **Post date:** [May 30, 2018, 9:07pm UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/149 "2018-05-30T21:07:41Z")
> [@Whack-a-Mole](#): > > Seems to me all these rulings suggest the FAA supersedes any state laws and the employee MUST go to arbitration. I’ve worked at many entry level jobs throughout my life, and I found one thing most had in common, managers and owners abusing and stealing from employees. Sometimes they would short hours a bit to keep their labor numbers down to make bonuses. Sometimes they would accuse employees of having a short drawer and compel them to make the drawer right on pain of termination. I’ve been paid under the table less than minimum wage, and I’ve been paid over the table less than minimum wage. I had one friend that worked at a place that simply didn’t pay overtime. I’ve seen rampant sexual harassment, as well as regular harassment. I have seen completely blatant discrimination based on gender, race, nationality, and religion. If I were to complain about these abuses, and the employer appointed arbiter disagreed with my position, what remedy do I have? I mean, technically, this ruling is good for me, as I am an employer, and it would be nice to be able to rip off and abuse my employees. Is there any remedy that they have against me if I were to so choose? ---
**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 30, 2018, 9:13pm UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/150 "2018-05-30T21:13:32Z")
> [@k9bfriender](#): > > If I were to complain about these abuses, and the employer appointed arbiter disagreed with my position, what remedy do I have? None. Not in the civil courts anyway. If a crime was committed you could try and get them busted criminally (arbitration is only for civil matters) but that won’t get your stolen money back. You might also try talking to a reporter to embarrass them or leave a bad review on Yelp. ---
**Author:** ![Ruken](https://avatars.discourse-cdn.com/v4/letter/r/f475e1/32.png) [@Ruken](https://boards.straightdope.com/u/Ruken)\ **Post date:** [May 30, 2018, 9:47pm UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/151 "2018-05-30T21:47:54Z")
> [@Whack-a-Mole](#): > > None. Not in the civil courts anyway. If a crime was committed you could try and get them busted criminally (arbitration is only for civil matters) but that won’t get your stolen money back. This isn’t true, as has already been discussed in this thread. ---
**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 30, 2018, 10:19pm UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/152 "2018-05-30T22:19:17Z")
> [@Ruken](#): > > This isn’t true, as has already been discussed in this thread. It is true. As has been discussed at some length in this thread. ---
**Author:** ![Ruken](https://avatars.discourse-cdn.com/v4/letter/r/f475e1/32.png) [@Ruken](https://boards.straightdope.com/u/Ruken)\ **Post date:** [May 30, 2018, 10:21pm UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/153 "2018-05-30T22:21:11Z")
> [@Whack-a-Mole](#): > > It is true. As has been discussed at some length in this thread. So DOL WHD is just a wall decoration? ---
**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 30, 2018, 10:32pm UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/154 "2018-05-30T22:32:15Z")
> [@Ruken](#): > > So DOL WHD is just a wall decoration? Arbitration trumps the DOL in almost all cases (there are some very narrow exceptions). There are probably some other particular instances where arbitration doesn’t replace the DOL but on the whole if you have agreed to arbitration then that is what you do. If you have not agreed to arbitration then you can go to the DOL if you want. ---
**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 30, 2018, 11:38pm UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/155 "2018-05-30T23:38:12Z")
> [@k9bfriender](#): > > If I were to complain about these abuses, and the employer appointed arbiter disagreed with my position, what remedy do I have? The [FAA has these provisions](https://www.law.cornell.edu/uscode/text/9/10)for contesting, among others: > [@](#): > > (a) In any of the following cases the United States court in and for the district wherein the award was made may make an order vacating the award upon the application of any party to the arbitration— > (1) where the award was procured by corruption, fraud, or undue means; > (2) where there was evident partiality or corruption in the arbitrators, or either of them; > (3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or > (4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made. > (b) If an award is vacated and the time within which the agreement required the award to be made has not expired, the court may, in its discretion, direct a rehearing by the arbitrators. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [May 30, 2018, 11:56pm UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/156 "2018-05-30T23:56:24Z")
> [@Bricker](#): > > It does not. But neither was that pronouncement necessary to resolve the issue. But it was. The Court held that since Scott was of African descent, he was not a citizen and therefore could not sue under diversity jurisdiction. ---
**Author:** ![k9bfriender](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/k9bfriender/32/3283_2.png) [@k9bfriender](https://boards.straightdope.com/u/k9bfriender)\ **Post date:** [May 31, 2018, 1:03am UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/157 "2018-05-31T01:03:58Z")
> [@Bone](#): > > The [FAA has these provisions](https://www.law.cornell.edu/uscode/text/9/10)for contesting, among others: Right, and that is what comes back to this case. If I am an employee of one of these employers that is stealing from or otherwise abusing me, I don’t have the resources to hire a lawyer and take them to court. Only then can I get a rehearing by arbiters, which may still be biased against the employee. Having the resources of a class action is the only way to hold employers to account, if they have de facto control over the arbitration process. Now, I’m sure that there will be arbitration that is won by employees from time to time. There are some employer abuses that are so egregious that it is impossible to really dismiss, no matter how biased. But for more ambiguous scenarios, I cannot see any reason they would find in favor of the employee. I can see how arbitration is a good thing for employers, and even for employees in certain circumstances. It saves both of them legal fees, if nothing else. For employees, if also prevents the employer from bringing the uneven weight of their resources to bear against them in a legal fight. However, things are already so stacked against the employee, they have little chance of winning. Most employees don’t even fight it. They know they aren’t going to win, and that when the employer retaliates against them for calling them out on abuses, they won’t be able to do anything about that either. Now, it could be the case that we just don’t care about entry level workers making under $20 an hour. If that’s the case, then sure, screw 'em, I’m not one of them anymore, now I’m one of the screwers. Let’s just be honest about it, and let them know that they don’t actually have any rights. ---
**Author:** ![Ruken](https://avatars.discourse-cdn.com/v4/letter/r/f475e1/32.png) [@Ruken](https://boards.straightdope.com/u/Ruken)\ **Post date:** [May 31, 2018, 2:05am UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/158 "2018-05-31T02:05:15Z")
> [@Whack-a-Mole](#): > > Arbitration trumps the DOL in almost all cases (there are some very narrow exceptions). There are probably some other particular instances where arbitration doesn’t replace the DOL but on the whole if you have agreed to arbitration then that is what you do. > > If you have not agreed to arbitration then you can go to the DOL if you want. I’m curious how this works. The employer and and employee have an agreement with each other, not with WHD. If WHD sees that the FLSA has been violated, they can enforce it with administrative and litigation procedures, or by recommending criminal prosecution. The case in the OP is about individuals and groups litigating on their own. ---
**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 31, 2018, 5:40am UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/159 "2018-05-31T05:40:09Z")
> [@Ruken](#): > > I’m curious how this works. The employer and and employee have an agreement with each other, not with WHD. If WHD sees that the FLSA has been violated, they can enforce it with administrative and litigation procedures, or by recommending criminal prosecution. The case in the OP is about individuals and groups litigating on their own. The SCOTUS has spent the last 30+ years blocking off employee access to the courts to hold employers accountable but left an even easier, cheaper and more simple route to do that very thing? I do not know how all that DOL stuff works but count me as dubious that really, all this time, employees need not sue their employer but rather ring the DOL and have it all sorted. Easy peasy right? Note: Criminal charges and/or fines for violating labor laws is a whole other thing and has nothing to do with arbitration. Note2: Arbitration covers more than employer/employee relations. It also is covering consumer law suits. ---
**Author:** ![Snowboarder\_Bo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/snowboarder_bo/32/229_2.png) [@Snowboarder\_Bo](https://boards.straightdope.com/u/Snowboarder_Bo)\ **Post date:** [May 31, 2018, 3:56pm UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/160 "2018-05-31T15:56:40Z")
> [@Whack-a-Mole](#): > > Note2: Arbitration covers more than employer/employee relations. It also is covering consumer law suits. Don’t forget medical! I bet nearly everyone here has signed a form at their doctors and dentists offices saying that you agreed to arbitration; no suing your doctor for cutting off your hand instead of prescribing antibiotics, haha! Of course, this doesn’t matter much here in Nevada because even if they kill you, [the most they’ll owe is $350,000](https://www.reviewjournal.com/local/local-nevada/nevada-justices-uphold-medical-malpractice-damages-cap/). But that’s a separate, state-by-state issue, eh. [Previous page](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561.md?page=7) [Next page](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561.md?page=9)