This summary is pretty misleading. In fact, I’d say the EPI article is deliberately misleading. For example, here is what it says and for which you quoted (my bold):
\
But that’s not accurate at all. The statue does NOT contain a specific exemption for contracts of employment generally. Here is the part they are interpreting:
So the EPI link cuts off the quoted statutory text, and doesn’t expound on the reasoning why the employment application is limited to transportation workers. That’s pretty misleading. But I think this is probably the case you’d want to hang your hat on - if this was wrongly decided, then it could be said that the FAA wouldn’t apply to employment contracts. I’d need to dig into this one further to form an opinion on it.
The judicial decision was the result of slavery being legal, and expressly contemplated in the Constitution. The way to reverse the horrible results created by correctly applying the law was for Congress to propose an amendment that eliminated the grounds for the decision: which they did, and which the states ratified in 1868.
I don’t want judges creating the “right” result when the law is a bad one – I want legislators creating the law.
In making the Dred Scott decision, the Court recognized that the Constitution clearly and expressly contemplated slavery. (“…three-fifths of all other Persons…” in Art I Sec 2 a compromise arising from the slave states’ desire to count slaves as a whole person even when they could not vote, and free states’ desire to not count them at all; “…The Migration and Importation of such Persons…” in Art I Sec 9; and the actual Fugitive Slave Clause in Art IV, Sec 2: “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 Service or Labour may be due.”)
Now, are you hoping I’d want to see the institution of slavery ended? Yes, absolutely.
But are you hoping I’d want the Court to simply decide that because its members opposed slavery as wrong, that was good enough reason to re-interpret it out of the Constitution? No. No, no, no.
We can amend the Constitution if it produces results we don’t like. We cannot – or SHOULD not, anyway – grant judges the power to become super-legislators and substantively rewrite the Constitution.
I’m not sure I have seen anyone defend the Dred Scott decision which is widely regarded as the worst decision in supreme court history.
The case had nothing to do with outlawing slavery. It had to do with whether Dred Scott could be a citizen and sue for his freedom when he was in a slavery free state.
When the constitution was signed black men could vote in five of the thirteen states so clearly they could be citizens. Also, since the court determined it didn’t have jurisdiction the case should have just been dismissed. Everything Taney said was more rant than law at that point.
Sure but apparently you are fine with them expanding a law far past what congress intended in the FAA.
Imagine congress passed a law that said an employee cannot sue an employer. I imagine that would be struck down by the courts.
But the supreme court has almost gotten us there in practice. Want to bring a civil suit against your employer? Well, now your employer can, with no more than a paragraph in an employment contract, deny you that right and force you to arbitration that leans heavily in their favor. It is as easy as that for them to restrict your right to access the civil court system and bring a suit.
Want to band together with your fellow employees to stop rampant violations? Nope, can’t do that either. That paragraph stops you. It is ridiculous how trivially easy it is.
Want to appeal the decision? You can in a regular court. You can’t here. If the arbitration court blatantly ignores the law surely you could appeal that! Nope. Can’t do that either.
They have effectively created a special side of the civil court system and shunted most consumers and employees in to it. Did they all agree to this? Not really. They never got to negotiate a thing.
This now enables things like widespread over billing because who is going to spend thousands of dollars to recoup several hundred dollars? It enables widespread wage theft for the same reason.
Do you believe all the above is what congress intended and wrote into law?
Can you explain why you feel that “black men could vote in five of the thirteen states so clearly they could be citizens?” (Interestingly, Justice John Mclean in dissent in Dred Scott alludes to the same argument, but I don’t know what your reasons are).
Now, it’s true that the case could simply have been disposed of on jurisdictional grounds, and today we have a more clearly developed sense that courts should not address a constitutional question when the controversy can be decided on simpler grounds. But that was not the case in Taney’s time. I agree it’s an ober dicta rant, but I don’t agree it’s particularly unusual for the time.
Ultimately, though, it seems to me you readily accept these processes when the result accord with your desired outcome, and decry them when they don’t.
The problem is that trying to peer into what Congress intended is futile. Pre-passage testimony described arbitration as “face to face,” for example. Someone might argue that this is what Congress intended, but since Congress did not write that requirement into the law, I don’t care about it.
CONGRESS INTENDS WHAT IT WRITES. If 65 senators vote in favor of a law, maybe 40 intend one thing, 20 intend something different, and 5 are voting because they traded their votes on the measure for votes on something else. And what did Coolidge “intend,” when he signed it? I don’t know – is that relevant?
No: the only thing that matters is looking at the words they passed, what those words meant to the people of the time, and how they are neutrally applied to the present day.
Where did congress write that arbitration can be forced on another party with nothing more than a contract of adhesion? Where unconscionability of a contract is to be ignored. Where illegal contracts don’t get you out of arbitration and even if the arbitration court ignores the law the decision cannot be appealed? Where did congress say arbitration is immune to the formation of a class action?
Where did Congress say you’re allowed to wear a green shirt?
The answer, of course, is that Congress did not, and does not, have to explicitly allow the list you’ve mentioned. Instead, they merely have to say that the FAA permits parties to agree to classwide arbitration and that the FAA requires courts to honor parties’ agreements.
The power of a state to define unconscionability must yield to Congress’ superior power – when Congress makes laws pursuant to the powers granted to them by the Constitution, the Constitution itself says that those laws are supreme - Article VI, Clause 2.
So the answer to “where did Congress say…” depends. Sometimes, Congress doesn’t need to say each specific, because Congress laid out an overarching rule that includes the specific. In other cases, like unconscionability, Congress has pre-empted the issue so states cannot legislate. There is an entire body of preemption law. Are you familiar with it?
Bricker, here’s the deal. I think you have a genuine point. Courts shouldn’t make the law, Congress should.
The only raw deal here is the timing. So previous to this, for decades, Corporations couldn’t get away with screwing individuals over without eventually facing the negative consequence of a class action.
It appears that is no longer the case, and they can commit petty theft with impunity, only paying out the few times someone takes them to arbitration and wins in a rigged court. (arbiter : “can you prove you didn’t ask to open this extra bank account with Wells Fargo? It says right here that you did, it’s a note in your file made by the employee at Wells Fargo who opened it…”. “for you time and hassle going to arbitration, I’ll award you back the $10/month fee you were charged for this extra account and nothing else”)
That is a judgement that on the face of it sounds reasonable, in fact. But it gives Wells Fargo a license to steal since if they only have to pay back what they stole to those who go to arbitration, they net a huge profit from all the people who didn’t.
Suddenly, now corporations have the unlimited right to commit petty theft. And there is no way that power can be taken away from them until probably the end of Mr. Trump’s presidency, when a bill fixing this could possibly be passed and signed into law.
This isn’t right either. Look at the history posted by Whack. This ruling is consistent with the long history of FAA interpretation. There’s no significant change worth this ruling.
Does anyone really believe the decision was a matter of logic? That this was a mathematical exercise to resolve two postulates that seemed to conflict, and that by chance the logicians happened to split on purely partisan lines on this matter of logic?
Of course not. And anyone who thinks otherwise probably thinks Scalia’s passion to sell American democracy to the highest bidder was done for noble reasons.
Did any of the five anti-labor Justices say “This is a lamentable decision but our hands were tied. We hope Congress quickly fixes this problem?” I don’t think so; and if they did they were sniggering all the way to the bank.
U.S. courts have a long history of throwing out contract provisions when one party was too poor or incompetent to negotiate. But that was then and this is now. America now belongs to whoever can afford the most lawyers. MAGA.
The current chairman of which is John F. Ring, who(according to Wiki) “…was formerly co-chair of the labor and employment law practice at Morgan, Lewis & Bockius, where his practice included collective bargaining, labor contracts, multi-employer benefit funds, and corporate restructurings” (bolding mine).
How reassuring.
Given the necessity of signing many such contracts and how few people actually read things like the terms of service and fine print for what should be pretty standard contracts… I fail to see how this is in any way relevant. If every place that will hire me has a clause against class action lawsuits, then there is effectively no recourse for class action against my employer regardless of who it is.
And with employers/companies able to choose the arbiters, employers are only going to pick the ones with the best track record of finding in the employer’s favor, and arbiters are going to tend to want to find in the employer’s favor in order to be more attractive in the future for employers to hire.