I’m not sure I agree. I am absolutely certain that all nine justices agree that Congress has the power to legislate in this area, and that the issue is whether a federal law comes into conflict with a state law, and that the Fourteenth Amendment is not involved, and that the Supremacy Clause is involved.
So all nine justices woiuld agree that Congress could fix this problem.
Four justices believed that California’s law didn’t conflict with the federal law. Five said it did.
You seem to believe that the judicial branch should simply fix a wrongness, because Congress’ decision-making is corrupted to some extent. There’s no evidence that four, or indeed any, justices believed that.
The lawyers make out for millions because they spend thousands of hours prosecuting the cases. Class action suits take years just to reach settlement. Apart from anything else, it can take years just to establish whether the case should even be certified as a class action.
It would help, Whack-a-Mole, if you actually understood any of the issues under discussion. Do you get the difference between express and implied preemption, and specifcally between implied field preemption and implied conflict preemption? (I’m not asking if you ran to look those phrases up and then answered ‘yes’ – I’m asking if, when you posted your last message, you nderstood those distinctions).
California’s “Discover Rule” is subject matter that is directly addressed by the FAA. The four dissenting justices believed they could harmonize the two provisions; the five majority justices said they could not. While I agree with the five, I allow that it’s an arguable point.
The Arizona law does not address subject matter directly covered by the Immigration Act. It covers illegal immigrants, yes, but you can’t point to any provision of the Immigration Act and say that the Arizona law contradicts it.
This is why I said I hated to muddy the water. Federal preemption is not a simple area, and in making a broad point a little more accurate, I have added a layer of confusion.
The claim that the provisions directly contradict each other is the decision of the court. It’s a close question on which reasonable people may disagree. No justice, I’m sure, believes that federal preemption is not in play.
Becuase Arizona’s law doesn’t interact the same way with the Immigration Act, the entire question of federal preemption is a closer question. “When the text of a pre-emption clause is susceptible of more than one plausible reading, courts ordinarily ‘accept the reading that disfavors pre-emption.’” Bates v. Dow Agrosciences LLC.
I have a question regarding Contracts of Adhesion. I’m wondering if it works both ways. Hypothetically, I’m at the AT&T store buying a cell phone with two year commitment, ect. There is a 20-something selling me the phone. I take the contract, flip to the arbitration clause, cross it out, initial/date the cross out, and then sign and date the contract as usual. The sales person doesn’t comprehend or care or notice what I did. The contract is signed and the phone paid for. I leave.
Is that arbitration clause still part of the AT&T contract now? I understand AT&T didn’t agree to the change (hence why I ask it Contracts of Adhesion works both ways), but do they consent to it by completing the transaction and selling me the phone. Or does a contract of adhesion mean I am not allowed to change it.
I would expect that your change would not be considered part of the contract – in other words, that would be ineffective in removing the arbitration clause.
I’m not so sure. There’s a matter of agency, of course, as to whether the salesperson can accept the counteroffer. But there’s no doubting that there was a counteroffer. Further, since a counteroffer ends the pendency of an offer, you can’t say that the original offer was accepted by post-counteroffer use of the services.
On the model of the UCC’s knockout rule (which I know does not apply here, but can provide some guidance nevertheless), I’d say the arb clause is out, the remaining terms, which did not vary from offer to counteroffer, are in. The common law approach would be that no contract was formed, no?
WAG, but I would think that since the clear intent and expectation of the business is to offer a take-it-or-leave-it type of deal, then a surreptitious crossing-out of a contract term would, if anything, result in no contract at all.
You accused me of wanting the court to right a wrongness.
I pointed out that four justices (and lower courts) felt the CA law was ok.
Obviously five justices disagreed and carried the day.
The difference is, while I do not think the court should be philosopher kings proclaiming anything they feel like, I feel outcomes are more important than your hidebound adherence to the letter of the law no matter the outcome.
If several justices could see their way to harmonize the two laws I presume they had good legal reasoning to do so. You may feel the reasoning against it was better. Fine.
However, your road is a scary one and one that denies me rights (the right to band together with others to stop a company from committing some fraud).
If the court had harmonized the law and Congress wanted to be more clear on this point then Congress could have re-written the law to reflect that. Works both ways.
Forgive me if this has been answered - I stopped reading the histrionics in this thread a while ago.
If the contract specifies arbitration, do they generally specify individual arbitration? Is there any reason why arbitration can’t be done as a class action?
Would having the salesperson also initialing the stroked out arbitration clause work? I’m assuming that they’re trained not to, but if one did would it stand up in court?
I’ve stroked out clauses in standard contracts and had both parties initial the changes but a) I’m in Canada b) they were rental contracts and I was dealing directly with the landlord c) it was my understanding that the clauses were unenforceable in my province anyway and d) I never had a reason to go to court.
Well, that’s the agency question. Whether they had either actual or apparent authority to accept counteroffers with respect to arbitration. They almost certainly don’t have actual authority to do so. Apparent authority would be a whole other kettle of fish and depend on the specific facts of the negotiation context.
IME, class action lawsuits are mostly an opportunity for lawyers to make money. The settlements generally involve the supposed plaintiffs getting virtually nothing, while the lawyers make millions. [I’m aware that these settlements are approved by the judges.]
I agree that these lawsuits have some benefit, in discouraging companies from ripping people off. But the harm far outweighs the benefits, IMHO, in terms of 1) legal fees on both sides and 2) the fact that many companies have strong incentives to settle out-of-court even if they didn’t rip anyone off at all.
[Even worse are the shareholder lawsuits, where the lawsuits themselves generally harm the plaintiffs - most of whom are still shareholders - more than the alleged cause of action.]
Well, that summary ignores your little foray into claims that the difference between this case and Arizona’s were the result of constitutional violations vs. federal law violations, and that the Fourteenth Amendment was somehow key to one of those cases.
If your point was merely that you’d have preferred the other outcome and there must have been some legal rationale that would have allowed you to get there… that’s fine. We view the roles of the judiciary differently. We both see them as one of three co-equal branches, but to you, that means that they should take an active role in shaping policy. To me, that means that they should be like referees, with no interest in who wins the game but a great deal of interest in following the rules.
Doesn’t completing the transaction and selling me the phone “accept” the (counter)offer? I’m thinking it does, it’s just a matter of what was actually agreed to (arbitration remains or is it removed). If my cross out doesn’t mean anything, then I’m baffled at the one-sidedness of the situation.
To be clear, I’m trying to imagine a situation where the roles are reversed. If the 20 something salesperson had taken the time to re-read the contract and make sure nothing was changed, she could have caught the change and brought it to a higher up’s attention and/or just not completed the transaction. The salesperson decided not to read the contract (or didn’t care), much like the public doesn’t read the contract (or doesn’t care). However, the public is stuck with all the terms they “agreed” to by completing the transaction, so should AT&T be stuck by the changes they “agreed” to in my counter-offer when they accept it as is and sell me the phone.