SCOTUS just restored us to Yellow Dog contract days!

[SamuelA]

@Whack-a-Mole

You just pointed out how class actions help. Yes they do not give the plaintiffs much benefit but the threat of a substantial lawsuit dissuades companies from doing bad things which is a good thing.

I meant to say the individual worker eats a shit sandwich either way. In America the only way to do alright is to invest heavily in training for a skill in demand and even then you get exploited. (Minimal vacation, importing of foreigners to drive down wages, management skims much of the value added by your labor). But you do ok, enough to live in modest comfort.

[Bone]

@Whack-a-Mole

With these rulings (listed in my previous post) the supreme court has dramatically decreased the ability of US citizens to access the courts and seek compensation when they have been damaged. That is not hyperbole. In Concepcion they made it “impossible for them to vindicate their legal rights.” They have allowed a corporation to force you to arbitration with no negotiation of the contract and made those arbitration decisions so set in stone there is practically no redress to be had even if they ignore the law (among other things).

But y’all are ok with this despite congress never writing all that into law. Now the court as essentially allowed wage theft because it will be near impossible for someone to bring a case to stop it (unless they are willing to spend untold thousands to recoup the $500 their employer stole from them).

Ultimately I think the argument you make is an emotional one, rather than one based on the law. Similar to the dissent, it’s outcome based, warning against a parade of horribles. Personally I’m opposed to the rise of binding arbitration - I think the practice unfairly shifts the balance of power. But the solution to an 80+ year old law being interpreted in a way I don’t like for 40ish years is to change the law.

I also don’t like Wickard and the interpretation of the commerce clause. But when a case before the court is decided based on the history of jurisprudence around the commerce clause, I can simultaneously think it was correctly decided and think that Wickard should be overturned. That would be much higher burden since those cases are decided on constitutional grounds - here Epic is not based on constitutional arguments at all. If Congress wanted to fix the state of arbitration, they have had ample opportunity in both Democratic and Republican years simply through legislation.

[Whack-a-Mole]

@Bone

Ultimately I think the argument you make is an emotional one, rather than one based on the law.

Certainly there is an emotional aspect here because the SCOTUS is royally screwing the citizens of the US.

Nevertheless, do you think the Supreme Court would have ruled the same way on this case if they heard it in 1936? I mean if this is a decision firmly rooted in the law then the court should reach the same conclusion regardless of when the case was heard.

I suggest a 1936 court would not remotely come to the same conclusion this court did. I doubt they would even have heard the case.

[John_Mace]

@Whack-a-Mole

Certainly there is an emotional aspect here because the SCOTUS is royally screwing the citizens of the US.

By allowing our elected representatives to set public policy? That’s an odd definition of “screw”.

Remember, this is not a constitutional issue, so there is no higher standard against which the law should be judged.

[puddleglum]

@Whack-a-Mole

I wish people here would decide if the supreme court changing the law to suit their own agenda is what they want.

Some in this thread have decried the SCOTUS doing that.

So, we have a law that no one, not even congress, interpreted the way conservative courts have. Once conservative courts got in they have been relentlessly expanding the scope of the FAA. This expansion got us to the latest ruling.

So which is it with you guys? I suspect the answer is the supreme court changing the law from how it was written is great when you agree with them and unconscionable when you don’t.

With these rulings (listed in my previous post) the supreme court has dramatically decreased the ability of US citizens to access the courts and seek compensation when they have been damaged. That is not hyperbole. In Concepcion they made it “impossible for them to vindicate their legal rights.” They have allowed a corporation to force you to arbitration with no negotiation of the contract and made those arbitration decisions so set in stone there is practically no redress to be had even if they ignore the law (among other things).

But y’all are ok with this despite congress never writing all that into law. Now the court as essentially allowed wage theft because it will be near impossible for someone to bring a case to stop it (unless they are willing to spend untold thousands to recoup the $500 their employer stole from them).

None of this is the least bit true. The courts have interpreted the Arbitration act this way for over 70 years.
No one is forced to go to arbitration unless they willingly signed a contract stating that they would go to arbitration.
If the arbitrator does not follow the law, the result can be contested in court.

[Budget_Player_Cadet]

@puddleglum

No one is forced to go to arbitration unless they willingly signed a contract stating that they would go to arbitration.

This argument is a zamboni - it glosses over so many problems that you may as well call it that.

For starters, yes, maybe someone signs a contract with their employer that they will go to arbitration. Chances are good their options were:

A) Take the job
B) Reject the job and look for a job that doesn’t have forced arbitration

Notice how B) implies that the average job seeker can afford to turn down a job, and that there are decent jobs that don’t have forced arbitration? Those are both really big assumptions to make.

Secondly, forced arbitration is fucking everywhere, and most people who are subject to it don’t know that - some 79% of people polled did not know that their credit card company had a forced arbitration clause. Their fault for not reading their contract carefully? Maybe - but most people don’t actually read all the contracts they agree to, because doing so is a prohibitively time-consuming hassle.

Do you read every TOS agreement, every notification the bank sends you about how its TOS are changing, every EULA you agree to?

And why wouldn’t a business include a forced arbitration clause? Why would literally any business not have a forced arbitration clause? The vast majority of consumers have no idea whether or not their services contain one, and I’d bet money on less than a quarter of them being able to describe arbitration accurately (although I don’t have the figures for that handy, do you honestly believe the average American understands it?). There’s essentially no market pressure against arbitration, and it turns out being able to screw people over with nigh-impunity is very useful for businesses. So why wouldn’t basically every single business get one? It’s directly advantageous to have forced arbitration clauses. The option of going to a business that doesn’t have them is, of course, dependent on such businesses actually existing, and there’s little reason why they should in an efficient market.

If the arbitrator does not follow the law, the result can be contested in court.

Which is even less worthwhile than just suing the company as part of a solo lawsuit. Who would do this? Has this ever happened before? Does the average person who gets screwed by arbitration have the legal know-how to spot how they got screwed? Remember, one of the parties in this arbitration procedure has extensive experience with arbitration and is also the person paying the arbiter; the other party likely has next to no experience.

[Bricker]

@Whack-a-Mole

The cases that draw the conclusion above are as follows (also taken from link above):

And which of these steps you you contend are flawed?

First, in the 1980s, the Supreme Court adopted a presumption in favor of arbitration to use when deciding cases involving the FAA. It ruled in Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1 (1983), that when deciding whether a particular dispute comes within an arbitration clause, courts should resolve all doubts in favor of arbitration.

Do you vote yay or neigh here? The opinion was written by Brennan and joined by White, Marshall, Blackmun, Powell, and Stevens. Dissenters were Rehnquist, Burger, and O’Connor.

Then, in 1984, in Southland Corp. v. Keating, 465 U.S. 1 (1984), the high court rejected the view that the FAA only applied to cases in federal courts. Rather, the Court held that the FAA also applied to disputes over contracts that were brought in state courts, so long as the dispute involved interstate commerce.

Is this the one you believe was wrongly decided? Again you’d be in company with Rehnquist and O’Connor; the majority opinion author here was Burger, joined by Brennan, White, Marshall, Blackmun, and Powell.

A third development of the 1980s concerned the types of disputes that were subject to the FAA. Whereas previously the FAA had been found to apply only to contractual disputes, in 1985, in Mitsubishi Motors v. Soler Chrysler-Plymouth, 473 U.S. 614 (1985), the Supreme Court held that the FAA also compelled arbitration of statutory disputes.

I assume we don’t care about this, since it had no effect on the current decision: the instant case is not a statutory dispute being resolved by arbitration. Right?

Beginning in the late 1980s and through the 1990s the Court struck down legislative efforts by states to protect consumers and employees from oppressive arbitration agreements. One case involved a 1985 Montana law requiring that arbitration agreements in consumer contracts appear on the first page of the contract in reasonable-sized type (Mont. Code Ann. § 27-5-114 (1993)). The purpose of the statute was to ensure that consumers knew that they were consenting to arbitration when they entered into a contractual relationship with a large corporation.

Same issue – the present case isn’t about knowledge that an agreement contains mandatory arbitration. Correct?

The Supreme Court has also made it difficult for consumers or workers to avoid arbitration on the grounds that it would be prohibitively costly for them to take their cases to arbitration. In 2000, in Green Tree Financial Corp.-Ala. .v Randolph, 531 U.S. 79, an individual who borrowed money to purchase a mobile home and who was subsequently saddled with exorbitant finance charges sued, claiming that the lender had violated the Truth in Lending Act—a statute intended to protect consumer borrowers from misleading terms in loans. Her loan agreement had a clause requiring an arbitration tribunal that would have imposed costs far beyond her ability to pay. The Supreme Court nonetheless enforced the arbitration clause, despite acknowledging that the projected costs of the arbitration would probably preclude Ms. Randolph from bringing her case at all.

In Green Tree Financial Corp.-Ala. .v Randolph, the Court UNANIMOUSLY held that the FAA treated the district court decision as final, thus conferring jurisdiction. Do you disagree with that aspect? The other part of the decision had to do with the agreement’s silence on fees, but that’s not an interpretation of the FAA. Do yo disagree with this one, then?

The Court has also further cut back on the ability of consumers and employees to avoid arbitration on the grounds that a contract is illegal, unconscionable, or otherwise not enforceable. One might think that if a contract is unenforceable, a party cannot be required to arbitrate under it because the arbitration clause is part of the unenforceable contract. That was the law until 1967. But in 1967 the Supreme Court held, in Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, that when a party claimed that a contract it had signed was induced by fraud, that party had to assert its claim in arbitration.

Holy shit! This case actually seems relevant to what you’re talking about. THIS must the case that offends you. Is it? Fortas, White, Clark, and Brennan did the dirty, with concurrence in the result from Harlan and dissent from only William O Douglas, Hugo Black and Potter Stewart. So this must be the case, yes? This is where you feel the court got it wrong?

Hopefully that will do for now.

It won’t, unless you intended to argue that you disagreed with each and every decision on the list. I’m asking what cases you contend are wrongly decided. All of them? Some of them? Which ones? Why, specifically?

And I hope that the answer to “Why?” isn’t “Because I don’t like the result.”

In each case, the Court answered a question it really hadn’t answered before. I don’t see examples of the Court overruling prior decisions – what they did is apply the existing law to new questions. If the result is a poor one, then the law needs to be changed.

The Court’s role is not to say, “Gosh, we like this policy outcome better, so we’re going to impose it.” The Court’s role is to say, “This is the text of the law, and here’s how it applies to this situation. If the result is unpalatable, then Congress must act.”

So you tell me: where, specifically, did the Court get it wrong in the litany of decisions you listed? And why?

[Bone]

@Budget_Player_Cadet

Secondly, forced arbitration is fucking everywhere, and most people who are subject to it don’t know that - some 79% of people polled did not know that their credit card company had a forced arbitration clause. Their fault for not reading their contract carefully? Maybe - but most people don’t actually read all the contracts they agree to, because doing so is a prohibitively time-consuming hassle.

Do you think the appropriate remedy is for the courts to ignore the law, bemoan the rise of binding arbitration, and simply do away with it? I don’t think so. I think even if Congress passes bad law, the courts should adjudicate based on that bad law, not re-tool it for the good of society.

@Whack-a-Mole

Nevertheless, do you think the Supreme Court would have ruled the same way on this case if they heard it in 1936? I mean if this is a decision firmly rooted in the law then the court should reach the same conclusion regardless of when the case was heard.

I suggest a 1936 court would not remotely come to the same conclusion this court did. I doubt they would even have heard the case.

Kind of a bad example on your part - since the plaintiffs in this case were seeking class action status, and modern class actions didn’t come into existence until Rule 23 in 1966. I agree that a 1936 court would have heard the case because the avenue of redress didn’t exist. But more substantively - I’m not sure how historical courts would have handled the modern day issues. That’s more general commentary than anything to do with this particular case. Don’t get me wrong, I’d be very happy if Congress were to limit the rise of binding arbitration.

[SamuelA]

@Budget_Player_Cadet

Notice how B) implies that the average job seeker can afford to turn down a job, and that there are decent jobs that don’t have forced arbitration? Those are both really big assumptions to make.

Their fault for not reading their contract carefully? Maybe - but most people don’t actually read all the contracts they agree to, because doing so is a prohibitively time-consuming hassle.

Don’t forget the fact you have no real negotiating power. Is Chase Bank going to look at that contract you where you scratched out the arbitration clause and get back to you? No, it’s a take it or leave it kind of deal. Ditto any employer - in fact, merely arguing over the contract might get them to rescind a job offer.

Sure, maybe you could find a rare company that doesn’t - but are you going to take a credit card with a hugely higher interest rate, a much worse job offer, or wait around unemployed until you find one that doesn’t have this screw-you-over clause? Well a few people might, but pretty soon that will be impossible. With this court ruling strengthening the clauses, everybody is going to be doing it.

[Whack-a-Mole]

@Bricker

So you tell me: where, specifically, did the Court get it wrong in the litany of decisions you listed? And why?

I will note (for the fourth time now):

“…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.”

I got those cases from this link: The arbitration epidemic: Mandatory arbitration deprives workers and consumers of their rights | Economic Policy Institute

The answer to your question is in there. I would cut and paste it all here but that would violate copyright rules on this board and I am basing my opinion on what they wrote so telling me to post here would just be a re-hash of what is written there better than I would do.

[Budget_Player_Cadet]

@Bone

Do you think the appropriate remedy is for the courts to ignore the law, bemoan the rise of binding arbitration, and simply do away with it? I don’t think so. I think even if Congress passes bad law, the courts should adjudicate based on that bad law, not re-tool it for the good of society.

Nah, I have no opinion on the actual merits of the case as I’m not exactly a legal expert. I just want to make sure we’re clear that regardless of whether this was good case law or not, the decision still sucks for basically everyone.

[elucidator]

Just remember, the Law is the Handjob of Justice. Speak softly, and if they decide you need a big stick, they will hit you with one.

[Bricker]

@Whack-a-Mole

I will note (for the fourth time now):

“…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.”

I got those cases from this link: The arbitration epidemic: Mandatory arbitration deprives workers and consumers of their rights | Economic Policy Institute

The answer to your question is in there. I would cut and paste it all here but that would violate copyright rules on this board and I am basing my opinion on what they wrote so telling me to post here would just be a re-hash of what is written there better than I would do.

The problem is that the link merely lays out the series of cases that have shaped the interpretation of the FAA, without annotating where, precisely, the line of cases is wrong. Your argument cannot simply be, “Look at this link,” because your argument perforce must rest on some supposed flaw in the line of cases.

So where is the flaw, or flaws?

[Whack-a-Mole]

@Bricker

The problem is that the link merely lays out the series of cases that have shaped the interpretation of the FAA, without annotating where, precisely, the line of cases is wrong. Your argument cannot simply be, “Look at this link,” because your argument perforce must rest on some supposed flaw in the line of cases.

So where is the flaw, or flaws?

The cases cited are meant to be viewed with the following in mind:

Under the common law as it stood in the early 20th century, arbitration agreements were not specifically enforceable, so it was easy for a reluctant party to an arbitration agreement to avoid arbitrating a dispute. To get this changed and make arbitration agreements enforceable, the New York Chamber of Commerce and the American Bar Association’s Committee on Commerce, Trade, and Commercial Law mounted a multipronged campaign to overturn the anti-arbitration policies of the common law. They drafted and successfully enacted the New York Arbitration Act of 1920. They then turned to Congress, and drafted the 1925 Federal Arbitration Act and lobbied intensely for its enactment. Their main ally in the battle for the federal statute was the Secretary of Commerce, Herbert Hoover, who saw the bill as fitting into his larger vision of promoting business self-regulation.

The stated purpose of both the New York and the federal statutes was to make written agreements to arbitrate enforceable. The key provision of the federal law, copied from the New York statute, was Section 2, which made written agreements to arbitrate in contracts involving commerce “valid, irrevocable, and enforceable, save on such grounds as exist in law or in equity for the revocation of any contract.”6 Other sections of the statute included a mandatory stay of judicial proceedings and the requirement that courts order parties to arbitrate when disputing parties have a written agreement to arbitrate. The FAA also provided for judicial enforcement of arbitration awards and specified extremely narrow grounds for a court to refuse to do so.

The drafters, legislators, and advocates of the FAA assumed that the statute applied only to business disputes. It was drafted with an eye toward trade association arbitration, not employment or consumer disputes. Indeed, the statute contains a specific exemption for “contracts of employment.” Consistent with this understanding, between 1925 and the 1980s, courts interpreted the FAA as applying to a narrow set of cases—commercial cases involving federal law that were brought in federal courts on an independent federal ground. But in the 1980s, the U.S. Supreme Court turned the FAA upside-down through a series of surprising decisions. These decisions set in motion a major overhaul of the civil justice system. It is no exaggeration to call the Supreme Court’s arbitration decisions in the 1980s the hidden revolution of the Reagan Court.

<snip>

First, in the 1980s, the Supreme Court adopted a presumption in favor of arbitration to use when deciding cases involving the FAA. It ruled in Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1 (1983), that when deciding whether a particular dispute comes within an arbitration clause, courts should resolve all doubts in favor of arbitration. It said that such a presumption furthered the “liberal federal policy favoring arbitration agreements, notwithstanding any state substantive or procedural policies to the contrary.” This declaration of federal policy has served as a fixture of arbitration law and provided a rationale for the extraordinary expansion of the FAA that followed.

SOURCE: The arbitration epidemic: Mandatory arbitration deprives workers and consumers of their rights | Economic Policy Institute

[Whack-a-Mole]

@puddleglum

If the arbitrator does not follow the law, the result can be contested in court.

Don’t be so sure (bolding mine):

Although arbitration is said to be a creature of the parties’ contract, and the parties are supposed to be able to craft arbitration systems however they like, the Supreme Court refused to enforce the parties’ agreement about the scope of review. Rather, it held that the national liberal policy favoring arbitration required limiting judicial review to the specific grounds enumerated in the FAA itself. In dicta, the Supreme Court also disparaged the long-settled principle that courts could refuse to enforce arbitration awards that were “in manifest disregard of the law.” Thus, after Hall Street, the grounds for attacking an arbitral award have become extremely narrow.

SOURCE: The arbitration epidemic: Mandatory arbitration deprives workers and consumers of their rights | Economic Policy Institute

[Bricker]

@Whack-a-Mole

The cases cited are meant to be viewed with the following in mind:

OK, so you feel that Moses H. Cone Memorial Hospital v. Mercury Construction Corp. was wrongly decided? The opinion was written by Brennan and joined by White, Marshall, Blackmun, Powell, and Stevens. Dissenters were Rehnquist, Burger, and O’Connor – conservatives.

Is that correct? The decision that you oppose was written by leader of the Court’s liberal wing William J. Brennan. Yes?

[Whack-a-Mole]

@puddleglum

If the arbitrator does not follow the law, the result can be contested in court.

This says it more clearly than my last post (bolding mine):

Because the Supreme Court rejected any sort of expansion whatsoever to the limited scope of judicial review stated in 9 U.S.C. §§ 10 and 11, other courts, such as the United States Court of Appeals for the Eighth Circuit, have also rejected other, judicially created exceptions, such as “manifest disregard for the law.” Previously, the Eighth Circuit had recognized “manifest disregard” as a grounds to vacate an arbitration award, defining manifest disregard as when “the arbitrators were fully aware of the existence of a clearly defined governing legal principle, but refused to apply it, in effect, ignoring it.”[2] However, after the Supreme Court passed its ruling in Hall Street, the Eighth Circuit changed its holding and held that even manifest disregard is not a sufficient grounds to vacate an arbitration award.[3]

SOURCE: Hall Street Associates, L.L.C. v. Mattel, Inc. - Wikipedia

[Whack-a-Mole]

@Bricker

OK, so you feel that Moses H. Cone Memorial Hospital v. Mercury Construction Corp. was wrongly decided? The opinion was written by Brennan and joined by White, Marshall, Blackmun, Powell, and Stevens. Dissenters were Rehnquist, Burger, and O’Connor – conservatives.

Is that correct? The decision that you oppose was written by leader of the Court’s liberal wing William J. Brennan. Yes?

Yup.

Do you disagree with the dissent?

[Bricker]

@Whack-a-Mole

This says it more clearly than my last post (bolding mine):

Congress passed a law, and that law said that courts could overturn an arbitration award only if the award was procured by corruption, fraud, or undue means; where there was evident partiality or corruption in the arbitrators; 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; where the arbitrators have awarded upon a matter not submitted to them; or where there was an evident material miscalculation of figures or an evident material mistake in the description of any person, thing, or property referred to in the award.

That’s it.

Are you saying Congress doesn’t have the power to limit the grounds like that?

[Bricker]

@Whack-a-Mole

Yup.

Do you disagree with the dissent?

I might have agreed with the dissent as a matter of public policy, but the controversy is exactly why we have courts. Now that the court has spoken, and settled the matter, I have no problem adopting the decision as settled law.

But you do, I take it?