A lot of people see SCOTUS decisions and think the matter closed, but congress with the flick of a pen could completely ban arbitration for employee contracts.
The employer/employee relationship is by its nature power imbalanced. If employers band together and all require arbitration (as they likely will via a standardised templated contract) employees cannot do much.
Will you believe this, that the court is not legislative in its actions, when the Janus ruling comes out? They are going to overrule decades of established labor laws.
The Janus ruling will be about whether public sector unions can force government employees to pays dues to their union. If you believe this is compelled speech, it doesn't matter if there are decades of laws -- they are invalid.
There's decades of laws that made interracial marriage illegal (Loving v. Virginia), and the supreme court overruled them too. If the constitution forbids a government action then it's up to the supreme court to overrule it.
Yes, there are instances of decades of legal precedent being overturned. In the case of Janus though I think it's a bit different. For one, I think the argument that being forced to pay fair share dues constitutes compelled speech is not even specious. It's, on it's face, wrong in my opinion. So Janus appears from my perspective to be more on the legislative side. This is especially so given that Gorsuch in the ruling that the thread is nominally about said that it's up to the legislature to change things.
If the Supreme Court overrules Abood in Janus, that'll be the Court doing its job to invalidate statutes that infringing Constitutional protections. Here, where there was no Constitutional concern, the Supreme Court did its job to give effect to a more specific Act of Congress (the FAA) over the more general policy in a different statute (the NLRA).
It is unreasonable in my opinion to consider Janus a constitutional issue. It's not a free speech issue even though it has been popularly cropped as such. People who benefit from collective bargaining ought to help pay for it.
I'm not a lawyer and you'll be able to cite a thousand cases to my one. My sister's neighbor is on the state Supreme Court where I live. He's said to me that a good lawyer can argue any case and cite a bunch of reasons to support his/her case.
For me the case is simple. The collectively bargained rules apply to everyone in the workplace. As such those who benefit from said bargaining ought to pay for it. This has been an established practice for many, many years. Each state has the right to negate this and many have enacted misnamed right to work laws. There is no compelling reason to change the current practice. Janus' speech is not currently threatened and the greater public interest should be the one that prevails. It won't though.
> It is unreasonable in my opinion to consider Janus a constitutional issue.
I'd agree with you if it weren't for the fact that this is about the government and government employees everywhere you look.
I never understood how we as a society and how the labor union movement could tolerate the existence of public employee unions in the first place, as they end up intermingling two otherwise very distinct worlds, as I believe has happened here.
What you call "collective bargaining" in this case I could call "pure political pressure", since the "bargaining" is against politicians.
The issue is that public unions are highly political animals. Being forced to fund them, just to have a government job, is akin to being forced to donate to a political party. We're not talking about neutral entities just looking out for worker's rights, but partisan entities typically in bed with the Democratic party.
> the Supreme Court did its job to give effect to a more specific Act of Congress (the FAA) over the more general policy in a different statute (the NLRA).
Disagree with your ipse dixit labeling. The FAA is broad and general, at least according to SCOTUS precedent, covering all contracts between all parties, covering all types of conduct in all industries, as long as "commerce" is involved. In contrast, NLRA § 7 was targeted to one specific category of contractual parties, namely employees and employers, and protected employees' right to engage in one specific type of conduct, namely concerted activity in two specific areas, namely (1) wages and (2) the terms and conditions of employment.
Moreover, as Ginsburg's dissent correctly pointed out, as the later-enacted statute, § 7 implicitly overruled anything to the contrary in prior legislation — because it's risible to think that Congress, in enacting a court-enforceable right to concerted action by employees, intended to allow the very target of employees' concerted action, namely the employer, to unilaterally strip away that right as a practical matter, whether by insisting on a no-class-action arbitration provision or by any other means.
I'm reminded of a conversation I had many years ago as a law student: Knowing little (then) about litigation, I innocently asked a litigation partner: "A nonsuit [a unilateral dismissal of a case in Texas state court] can only be filed by the plaintiff, right, and not by the defendant?" He laughed and said "Right; otherwise I'd be hurrying back to my office and dictating a whole lot of defendants' nonsuits." But now under this SCOTUS decision, employers get to do essentially much the same as a defendant unilaterally dismissing a plaintiff's case, without so much as a by-your-leave to a court or anyone else.
I agree that the characterization of which is more specific is the hairiest part. To me, the main issue is that the NLRA Section 7 does not address contracts specifically. One can imagine lots of things that have an incidental effect on exercising the right to bargain collectively; I don't think the NRLA can be read as preempting all of those things.
Not GP but I sure will be. For the curious see [1] and [2] for more info about this case.
Public sector unions are nothing but trouble and every step toward their destruction is a good thing. The very idea of having organizations funded by tax dollars that subsequently influence their own regulation, pay rates, benefits, and pensions with those same tax dollars in exchange for votes from their members is ludicrous. It's the ultimate slush fund feedback loop and unless it's reigned in the rest of the tax base ends up holding the bag (or municipal bankruptcy!).
That's the question though: is it the worker's money? If so, shouldn't they be able to do whatever they want with it, instead of giving it to the union?
It is a little disturbing when there is a chain of force exerted by government all the way from the original funds back to some kind of political activism.
The individual workers never have a chance to intervene in that chain. They have a collective right through their union vote, but free speech is an individual right. It would clearly be a free speech problem if you were forced to pay dues to the Republican or Democratic parties even though you have a vote within it.
Public sector unions are nothing but trouble and every step toward their destruction is a good thing.
It appears your position is that there is nothing good about public sector unions. Have they done no good? That's an extreme position. You say that every step toward their destruction is a good thing. I suppose that means you'd support illegal methods of destruction?
I'm in a public sector union. I pay union dues. That money comes from my pay and not taxpayers. My salary is paid for by the state but my dues come from my salary and are not part of my benefits. The union is not taxpayer funded. If you really think this then to the extent that my salary is used to pay for groceries does that make the supermarket partially taxpayer funded?
My union influences my workplace rules to the extent that they bargain my working conditions on my behalf. They have negotiators much more knowledgeable about negotiation than I am and they negotiate on my behalf. By law our workplace rules cover everyone whether or not they are in the union. It's reasonable to expect that everyone who benefits from the negotiation help pay for said negotiation.
Clearly, I'm not going to change your mind on the efficacy of unions; public or not. However, perhaps you will consider that your position is quite extreme. You can find no good?
I ask my liberal friends who decry Trump (as I do) can you name some good things he has done. Most can't. They are too extreme to even consider the other side. You sound like an extremist on this issue.
The parent comment was a bit excited, but there are major differences between money you use for groceries and money used for union dues.
The most relevant one to Janus is the fact that you can't choose which union your dues go to - but you have a number of choices about how to feed yourself with your dollars. You can go to a restaurant; go to Smart & Final; go to Whole Foods; in general, those dollars are fungible and decisions about how they are spent are made by you, not by the state. In contrast, your only options with a union are to either attempt to influence union leadership as a member (which, by definition, every member with differing opinions cannot succeed at) or to switch jobs. For example. let's say you're a prison guard in California (and a member of the CCPOA), but you disagree with your union's lobbying and donations to increase prison sentences for non-violent drug offenders. Ostensibly, this is negotiation you are benefiting from, and fully within the responsibilities of a union. Union dues aren't really your money.
> It appears your position is that there is nothing good about public sector unions. Have they done no good?
To society as a whole I'd say the net effect is negative. Note that I'm specific talking about public sector unions and not unions in general. And by net effect I'm referring to the overall effect on States and municipalities, not just the handful of members who receive direct benefit from the unions.
> That's an extreme position.
As a member of public sector union it may be extreme to you but that's your personal opinion. Being on the receiving end of any benefit of said unions would imply that you have biases of your own.
> You say that every step toward their destruction is a good thing. I suppose that means you'd support illegal methods of destruction?
You'd suppose incorrectly and I never suggested anything like that. Cheering the destruction of institutions that (IMHO) are a net negative to our society is neither illegal nor promotes illegal activity.
> I'm in a public sector union. I pay union dues. That money comes from my pay and not taxpayers. My salary is paid for by the state but my dues come from my salary and are not part of my benefits. The union is not taxpayer funded. If you really think this then to the extent that my salary is used to pay for groceries does that make the supermarket partially taxpayer funded?
The primary issue is that there is no competition for the public sector. By definition there is one government for a given region / level and it's in the interests of the public sector unions to ensure that government gets larger and pays them (and their members) more. That's the vicious feedback loop.
> My union influences my workplace rules to the extent that they bargain my working conditions on my behalf. They have negotiators much more knowledgeable about negotiation than I am and they negotiate on my behalf. By law our workplace rules cover everyone whether or not they are in the union.
Eliminating public sector unions doesn't mean that OSHA disappears. And if the pay or benefits are not enough to retain talent vs. the private sector then you're free to go find employment in the private sector. IMHO it's not the government's responsibility to provide you with a job.
> It's reasonable to expect that everyone who benefits from the negotiation help pay for said negotiation.
Again perhaps to you it is but you're also not giving someone the right to negotiate separate terms or avoid the system entirely. I say that right trumps yours.
> Clearly, I'm not going to change your mind on the efficacy of unions; public or not. However, perhaps you will consider that your position is quite extreme. You can find no good?
Again, I can't see any net good in the concept. It's too susceptible to abuse. Google "public sector union bankruptcy" for some fun reading.
> I ask my liberal friends who decry Trump (as I do) can you name some good things he has done. Most can't. They are too extreme to even consider the other side. You sound like an extremist on this issue.
I find it interesting that you've attempted to label me as an extremist three times in a single comment. A difference of opinion, a strong opinion, or a vocal one are never grounds for such crap.
"The very idea of having organizations funded by tax dollars"
They're not. And plenty of other organizations which receive tax dollars (any company that's ever done government contracting, for instance) engage in lobbying as well, and they're a much, much bigger problem.
Re #3 - Could you please explain how penalizing people for choosing to not patronize certain corporations fits that criteria? Because that seems like a huge boon to the corporations, basically cementing their positions and outweighing the procedural concessions they traded.
Making it marginally easier for those with means to save some money by reducing their taxes... because they took away some essential service from those without means.
Which "helps motivate" the people without means to stop being so lazy. /s
That's a false dichotomy. Corporations are the basic units of the wealth-creation engine that gives Americans among the highest standards of living in the world, not to mention employs almost all of them. Doing what's good for the corporations is usually also what's good for people.
Corporations are the basic units of the wealth-creation engine that gives Americans among the highest standards of living in the world, not to mention employs almost all of them. Doing what's good for the corporations is usually also what's good for people.
You're missing the /sarcasm tag. Doing good for corporations has, since Reagan, eviscerated the living standards of the American people.
Plus you're ignorant of how people in this country are actually employed. For example, a number of the wealthiest individuals in this country, and most of the top 5%, actually work for or own partnerships (in the form of LPs, LLPs, or LLCs), none of which are corporate entities. This doesn't include those employed by the government agencies or armed forces at the state or federal or local levels.
And last I checked, every major invention of the past century was funded in whole or in part by the government--there are no major discoveries wholly funded by corporate dollars.
Maybe in some fantasy corporation-league version of America, but I see a constant stream of "oh, you lobbyists want concessions for your anonymous sponsors/donors/owners? Sure, always glad to get more votes paid for!"
The only way to keep the general populace from getting trampled as far as they will allow is to push back against all this.
I've said elsewhere, vote out every incumbent Congressperson. Once the current paid members are gone, if the new set appears to be voting by donor status, vote them out too.
Keep voting them out until we find a few decent souls who realize that we the people are serious about being represented, not sold.
I would use campaign contribution reports as a "who should be first out the door" list... individual personal donations of fixed maximum size only, everything else counts against.
If you want to reduce corporate influence, reduce the size and influence of government.
The more a central authority takes and dictates, the more lobbying and money will be the influence that runs them. When you have a powerbase of politicians that can make or break conpanies, industries, and entire regions with a law or regulation, you will naturally have players interested in that space working for their own interests above all else.
Deregulation is the worse case in that sliding variable... an effectual government balances between the various parties, preventing corporate abuse of power at the expense of individuals.
When existing government gets hijacked by power brokers, that's where we the people should step up and say no by voting out the worst offenders. Tha's our check and balance, and where I despair of getting people to understand and care.
The person you're replying to presented no such false dichotomy. They said when was the last time they sided with the people WHEN they were in opposition, not that they were always in opposition.
It's like asking "When was the last time Congress did something to help feet, instead of shoes?" It's a really weird thing to ask, because like shoes, corporations are a tool used by people. They cannot, therefore, be opposed to anything as such. They're merely mechanisms, tools, in the hands of their principals and agents.
You can suggest that certain uses of these tools are improper and that the agents who effect these uses should be restrained, punished, or otherwise legally addressed, but you don't phrase that as a punishment against the tool -- it is rather a punishment against the agents who manipulated the tool improperly.
Sometimes I wonder if the whole "corporation v people" thing is a propaganda tool intended to misdirect public anger off the robber barons themselves and instead put it onto a formless legal abstraction that can't be held accountable.
American corporations are tools for people in much the same way that monarchies were tools for people. It pretty much is a tool that's only useful for those with the means to make the most use of it. Small businesses often can't use it to the fullest abilities because to do so requires an army of lawyers and accountants who are able to find every advantage possible. Playing to the rule book is especially advantageous when you get to write the rule book. The other problem is that corporations have more legal rights and power and are considered people in legal terms.
Using another example. Indentured servitude used to be a completely valid legal contract that benefited both sides. The reason it went away was because those writing the contracts started treating it like legal slavery.
The reason people go after corporations is because they are the ones in control of the government and what exactly will going after the people who own the corporations do? They often have private armies, write their own laws, and essentially function as royalty.
The essential and influential backers for Congress is industry. Congress is not really responsible or beholden to its replaceable selectorate. I don't think people hold enough influence to hire the lobbying to see this change.
Another comment mentioned how California is considering arbitration in legislation. With their massive engineering and startup culture, I think employees there as a bloc have a tremendous influence for very specific employee rights (also why there is so much legislation against non-competes there as well). That doesn't really exist in the rest of the country.
You can't really just "vote the bums out" when all politics depends on various degrees of corruption, no matter how democratic the country. I mean really, you need more of the people to hold more of the income; therefore less income inequality for all. That way you move more of the replaceables into the influentials.
> It is unlikely that Congress wished to confer a right to class or collective actions in §7, since those procedures were hardly known when the NLRA was adopted in 1935.
Kind of funny they use this as justification considering everything else they've upheld that was adopted decades prior to this without knowledge of modern custom or technology. Convenient argument when it's serving their purpose.
In these cases, the correct SCOTUS answer is "we can't decide". The proper response is some sort of forced decision in Congress -- In a criminal case, a higher court can "remand" -- order a lower court to review and decide. https://en.wikipedia.org/wiki/Remand_(court_procedure)
We need the same for bitrotted legislation.
In effect, we do -- When SCOTUS says "We don't think past Congress made a decision about this, so we'll pick a default ruling", current Congress has every right and opportnity to hold a vote to make a decision. If they don't, that means they agree with the court, and just as well would have repealed the law if SCOTUS ruled the other way.
Now, in practice Congress doesn't do its job (to busy campaigning for reelection), so inertia wields as much power as any considered deliberation....
Neither your nor the GP's point seems relevant to the quoted text, which seems pulled specifically to paint the SCOTUS decision in a bad light. I read it as a direct response to the claim of the employees in this case, which is that the NLRA intended to displace parts of the Arbitrage Act. They are just saying that, among other reasons, this was not a common policy and unlikely to have been meant even in spirit.
They further explain their approach to resolving claimed conflict between two pieces of legislation:
> And in approaching a claimed conflict, we come armed with the “stron[g] presum[ption]” that repeals by implication are “disfavored” and that “Congress will specifically address” preexisting law when it wishes to suspend its normal operations in a later statute.
And specifically for the Arbitrage Act, because this is apparently a tactic that people keep trying:
> In many cases over many years, this Court has heard and rejected efforts to conjure conflicts between the Arbitration Act and other federal statutes. In fact, this Court has rejected every such effort to date […] Throughout, we have made clear that even a statute’s express provision for collective legal actions does not necessarily mean that it precludes “‘individual attempts at conciliation’” through arbitration […] And we’ve stressed that the absence of any specific statutory discussion of arbitration or class actions is an important and telling clue that Congress has not displaced the Arbitration Act.
So they're not saying "we can't decide," they're stating (I think): Congress can give employees more protection in this arena, but the laws as written are (1) not unconstitutional and (2) are not being interpreted incorrectly by lower courts.
You're mixing up two different things: does the new thing fall within the old language, and would the drafters have used different language had they known about the new thing.
Is a semi-automatic rifle an "arm" as the term was understood in 1789? Yes, almost certainly, in the same way an aircraft carrier is a "ship" as the term was understood in 1789. If semi-automatic rifles had existed in 1789, would the framers still have used "arms" as they did? Maybe, maybe not, but that's irrelevant. We don't care about what they thought, just what they wrote.
Likewise, is a class action "concerted action" as the term was used in 1935? Probably not. Would the drafters of the NLRA have wanted class actions to be protected had those been common in 1935? Probably yes, but that's again irrelevant.
True, but these theories have become popular in the US because within the parameters of the American republic, they're the theories that allow you to step back and say "OK, what did this law mean?". Other theories involve much more individual interpolation and personal judicial bias/opinion/whatever, which is what is usually meant when people say "legislating from the bench".
The people of the Great State of $YOUR_STATE are reading the bills as they're written and electing, instructing, and/or recalling their representatives according to the contemporary mainline meaning of the actual recorded text of the bill. The people of $YOUR_STATE don't know that $YOUR_SENATOR meant X when he said Y. Or even if they do, there's no way to know that the people of $BORDERING_STATE, who also supported the bill, had the same implicit caveat.
Thus, the only way to understand the meaning of laws enacted by "the People" is to interpret the recorded text as an average person contemporary to its passage would have understood it.
It's not that odd. Section 7 is about the right to form unions and carry out collective bargaining: "Employees shall have the right to self-organization, to form, join, or assist labor organizations, 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, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3) [section 158(a)(3) of this title]."
It would require an awful lot of creative reinterpretation to decide that class action lawsuits are a form of collective bargaining and this section granted some kind of right to them, especially since they didn't exist at the time and wouldn't be invented for several decades.
I think the opposite; I think it would take a lot to decide that class action lawsuits are not a concerted activity for the purpose of mutual aid or protection.
This is really, really disappointing. Contracts are supposed to be fair for both sides. In isolation, meaning for one specific purchase or one specific job, they are. But what happens when every company and employer has this language in their contracts? What do they lose by including the language? They lose nothing!
This isn't disappointing at all as it reflects the state of the laws as they're currently on the books. Desiring or determining a court ruling based upon what you'd like the law to be rather than how it's currently written opens the door for legislation from the bench.
If workers want the law changed to ban arbitration clauses then they should ask their representatives to pass legislation to do exactly that. And if said representatives won't do so then they should elect someone else next election cycle who will.
Okay sure. But don't lose track of reality in your quest for idealism though.
There is a vast power imbalance between worker and corporation, both money and power. Businesses control the contracts, they have far more money, and, as a result, they have vastly more powerful lobbying. So in practice, there is no defense for workers anywhere! Kicking the can to "elect someone else" is just as naive as claiming that this decision respects the law on the books.
> Kicking the can to "elect someone else" is just as naive as claiming that this decision respects the law on the books.
But...it does respect the law on the books. Your concern seems to be that the law is bad, and that the judiciary ought to change that law. I don't think there's a lot of disagreement about the former, it's the latter that's more controversial.
From an idealistic standpoint, enacting Federal law is necessarily onerous, owing to the requirement of a strong consensus so as to prevent a marginal majority from shoving Federal laws down the throat of a large minority.
> Okay sure. But don't lose track of reality in your quest for idealism though.
Okay sure, it sounds like you don't care much for the idealistic standpoint, so let's talk pragmatism. If we can't gather this consensus at the Federal level, we have the levers of state legislatures to pass those same laws at a more local level.
Liberal states have the political will, the systems, and (if we're being frank) the majority of businesses that would be affected by Federal law anyway. They just need to have the will and pragmatism to compromise and pass their desired law at the state level until such a time that there's Federal consensus for that law.
2. NRLA does not override anything in FAA due to it being overbroad and/or things in the FAA not being "common policy"
are false, and thus the law on the books is not being respected?
#1 appears to be false and #2 is based on their erroneous position in #1. NRLA is more targeted than FAA and came 10 years post-FAA, so the argument that things covered in the FAA were not "common policy" at the time NRLA became law and thus wouldn't be overridden by NRLA seem ridiculous to me
No, it absolutely does not. It completely makes up a reason why this should be considered any different than any other instance where things have changed since a law was enacted.
Can you explain what the law on the books currently is, and how the majority opinion "absolutely does not" respect it?
> It completely makes up a reason why this should be considered any different than any other instance where things have changed since a law was enacted.
Things have changed since a law was enacted by legislative fiat. The thesis behind those arguing the intended function of the judiciary is that any instance in the past where the judiciary has actually changed a law since it was enacted is considered abuse and not to be repeated.
Given the US is a common law system, whats "on the books"
and "how it's currently written" is only part of the story - precedent established in prior cases is another large deciding factor in what the law "is", and judges have a fair degree of latitude to adapt interpretation in this regard. Interpretation is not static either.
> opens the door for legislation from the bench
In common law systems, indirectly this is what happens and has done for centuries. Through interpretation of statute and binding precedent, the bench does get to help define, albeit in far more limited fashion than the legislature, what "the law" is in a common law system. This is one reason why lawyers have to examine both the statute _and_ the case law.
We have a system that operates at the pace of 1776. That served us well for a long time, but since the post-war proliferation of mass media, it's hard to argue that it's adequate anymore.
You're right that people don't understand the way the separation of powers works, but the system badly needs to be revised. The world has totally transformed in the last 75 years and it's much smaller now. Political and legal feedback loops need to become much more responsive. One can see how it all worked when it would take weeks or months to get news of things like national election results, and when most people lived mostly self-sufficient agrarian lifestyles, but we don't live in that world anymore.
Our entire political system, including the functional ability for normal private individuals to seek and obtain useful legal relief, has ground to a halt over the last several decades. Technology has made the old methods increasingly bad fits for the modern era.
It'd be great if we could renovate the system before we fully convince the populace that the elements of good governance, like separation of powers and an independent judiciary, are necessarily linked to stunning and clear deprivations of fairness (of which binding arbitration is just one good example).
> We have a system that operates at the pace of 1776. That served us well for a long time, but since the post-war proliferation of mass media, it's hard to argue that it's adequate anymore.
I'd argue the exact opposite. The pace of our system is just a reflection of the current ideological polarization. Enacting Federal law requires a strong consensus (to prevent abuse), and the more polarized we are, the more difficult it becomes to shove Federal laws down the throat of a narrow minority.
If we can't gather this consensus at the Federal level, we have the levers of state legislatures to pass those same laws at a more local level.
Liberal states have the political will, the systems, and (if we're being frank) the majority of businesses that would be affected by Federal law anyway. They just need to have the will to compromise and pass their desired law at the state level until such a time that there's Federal consensus for that law.
> Liberal states have the political will, the systems, and (if we're being frank) the majority of businesses that would be affected by Federal law anyway. They just need to have the will to compromise and pass their desired law at the state level until such a time that there's Federal consensus for that law.
That's a nice theory, but no. Federal law preempts state law in this scenario[1] so states are completely unable to do anything to reign in arbitration.
Which, effectively, means that state goverments cannot pass any kind of meaningful consumer protection law or worker protection law, because of how fundamentally structurally biased towards the bigger side forced arbitration is. It's doubtful that Congress ever intended to preempt state laws in this way or that the FAA would've made it through Congress if it attempted to do so; this was entirely the creation of the Supreme Court, with none of that pesky horsetrading and strong consensus that would be required to pass an actual law.
There is definitely something to be said for requiring broad consensus. I think many would argue that the systems were intentionally designed to be slow and convoluted because it meant that only the most important things would survive and get implemented, at least at the federal level. I don't necessarily disagree with that in principle, but "slow and convoluted" by 19th century standards is "worthless and disastrous" by 21st century standards.
Technology has brought us all much closer, and it requires us to re-evaluate many of our old ideas. Maybe it was easier to say "each state will handle things on its own" in the 1800s, when it could take days or weeks of walking just to get to the state line. Now, many of us would be able to get to our state's border and back over the course of a long lunch break -- to say nothing of boarding an airplane and traversing the entire continent in a single evening.
In the old days, the saying was that a lie can get around the world before the truth can pull its boots on. Now, massive knots of information, too intermingled to classify definitively as either truth or error, traverse the earth literally at the speed of light. Unfiltered recordings of many important events are now available across the planet a few seconds after they occur. When our political processes were designed, it would take months for highly-diluted summaries of information to percolate to the masses.
As a species, we are still coming to terms with our ridiculous new powers of instantaneous global mobility and communication, but it seems patently silly to me to insist that systems designed for the much slower and bigger world of the past will map onto today's world essentially without modification.
I don't think that this is a technology problem - it's a polarization problem. No amount of technology traveling at the speed of light will solve the simple problem that you belong to an ideological sub-group that ferociously disagrees with another sub-group about how things should be run. Indeed, we're a nation of 330 million people, this is to be expected. I'm amazed we've been able to get away with this level of centralization for this long.
This isn't all that different from the EU, a similar union of states with a similar population (500 million), where the vast majority of laws and regulations are passed at the member-state level and not at the EU level. Any American that argues "each state will handle things on its own" is just making the same argument that a European might make when saying "we should enact this healthcare system X, or that pension system Y, or that policy Z in Germany".
This was always the Framers' intent, Hamilton himself was well aware of the perils of the Tyranny of the Majority[1]. The prescription for this was to apply the subsidiarity principle and use concurrent majorities (i.e. "let the states decide"). Federalism was never about the logistics of walking to state lines.
Replying to myself: Think about how many transactions--i.e., in legal terms, a contract--you participate in every day. Now imagine that every one of those contracts forced on you to essentially give up your access to the court system for resolving grievances with private companies. That's where I believe we're heading, especially now that it seems like the issue has been officially resolved (at least for jobs). It's really scary.
> Contracts are supposed to be fair for both sides.
That's not really a prerequisite for contracts. Contracts will often reflect substantial negotiating leverage on one side versus the other (e.g. a contract for sale of a house where the seller just lost his job, or a contract for sale of stock where the seller really needs money due to an unforeseen emergency). That's not a reason not to enforce them.
AFAIK there are limits to that. Certainly, contracts are required to be reciprocal. That is, one cannot write a contract that states A gives stuff to B, without requiring B to give some form of compensation. This is why things are sometimes sold for $1 rather than gifted.
I think there are also 'no contracts can be made under duress' clauses that limit how much one can use leverage to unbalance a deal. Not sure what kind of limits there are to that though.
The verdict seems very consistent with the existing laws while many believe it is unfair. But these are two separate things. Workers should petition their representatives to pass laws that will help them bring fairness and the courts will then have to look at the issue freshly.
> But what happens when every company and employer has this language in their contracts? What do they lose by including the language? They lose nothing!
That is not true. Arbitration does not come free and not necessarily always in favour of the employer either. Which of the following would you prefer ?
1. Pay a monthly fee of $25 and whenever you get a traffic ticket you don't have to pay it 40% of the times.
2. Pay a traffic ticket only if you get it.
Every single car I have purchased made me sign similar agreement and I know at least one car dealer who got sued and lost pretty badly.
> "not necessarily always in favour of the employer"
You're not really helping your case here if this is the strongest statement you can make in arbitration's favor – "you're not necessarily fucked!".
The New York Times ran a series about binding arbitration a while back, and a running theme was that arbitrators who repeatedly rule in favor of individuals quickly find themselves getting no more business, as you'd expect. Thus, the incentives of arbitrators are strongly skewed to favor employers (even if not at the individual level, then definitely at the ecosystem level via selection pressure) and I don't believe for a microsecond that their decisions are fair and reasonable.
How do arbitration clauses compare to 'no sue' clauses. By the second I mean contracts that state one party shall not sue the other for a given thing.
As far as I know, 'no sue' clauses are unenforceable.
It seems to me that arbitration clauses prevent workers from suing their employers which would essentially be a 'no sue' contract.
I don't think the courts would miss this, so I am probably wrong here somewhere. Would anyone care to correct me?
I'm curious about this too. I thought arbitration clauses meant that for the conditions listed in the contract, you have to go through arbitration and wave your rights in going through the courts.
For those living in California, this issue of requiring arbitration contracts in the pre-employment stage is under consideration from the state legislature, and the bill has some heat on it.
This bill would prohibit an employer from, as a condition of employment or as a condition of entering into a contractual agreement, prohibiting an employee or independent contractor from disclosing to any person an instance of sexual harassment that the employee or independent contractor suffers, witnesses, or discovers in the workplace or in the performance of the contract. The bill would also prohibit an employer from requiring any applicant for employment or prospective employment or any employee to waive any right, forum, or procedure for a violation of any provision of the California Fair Employment and Housing Act (FEHA) or other specific statutes governing employment, as a condition of employment, continued employment, or the receipt of any employment-related benefit. The bill would also prohibit an employer from threatening, retaliating or discriminating against, or terminating any applicant for employment or prospective employment or any employee because of the refusal to consent to the waiver of any right, forum, or procedure for a violation of specific statutes governing employment. The bill would establish a specific exemption from those prohibitions. Because a violation of these prohibitions would be a crime, the bill would impose a state-mandated local program.
Another thing that makes me want to move to California. CA laws ban non-compete agreements with the state and there seems to be a tremendous amount of laws geared to protect the employee.
Her dissent is "I wish I could write legislation from a bench and darn we don't have enough on our side".
It is great that SCOTUS is starting to uphold the laws as they are on the books. Frankly, the idea that not legislators but the courts get to write the laws should be abhorrent. Courts need to stick to "is this law contradict other laws and hence is invalid" decisions.
Want to change the law? Get congress and senate to pass a new law and have a president sign it.
This seems like a particularly weird place to lay charges of activism.
The majority decision claims "It is unlikely that Congress wished to confer a right to class or collective actions in §7, since those procedures were hardly known when the NLRA was adopted in 1935." That's either an activist position or an original intent position; it relies on comparing circumstances today to the circumstances Congress is presumed to have had in mind.
The Court's current originalists are textualists to a man, and have consistently rejected arguments of the form "this law's authors didn't anticipate modern conditions". But today, they decided to restrict a right provided by the text of the law, and did so by appealing to circumstance and intent. (edited for clarity)
Legislation was written from the bench today, and it wasn't Ginsburg doing it.
In this case, I think an original intent reading and a living Constitution reading lead to the same place. But I only mention that because the decision references intent; original intent scholarship is rare in general and basically absent on the court.
Original meaning is what's currently represented on the court, and is as you say: "the law must not change under modern conditions". That's what I'm suggesting was abandoned by its usual practitioners today.
I'm not sure what you're intending by this comment, but Scalia's been dead now for some time, and his replacement (who is ideologically close to Scalia's) wrote the decision.
Law says X. New condition Y shows up. The law does not magically become X' where X' accommodates for Y.
If you want X', then pass the law that changes X to X'.
Edit: I'm editing this as NH blocked me from replying:
> Sure, we agree on that. But Law X will interact with condition Y somehow, so the question is what property of X is preserved when addressing Y. This is a pretty fundamental debate between constitutional scholars, not just a lecture on how laws work.
I apologize if it came across that I was trying to lecture anyone on how the law works.
> Law X says "the right of the people to keep and bear arms shall not be infringed". Condition Y is the development of new types of arms after the amendment was ratified. Textualists and original meaning scholars say that the text of the law should be preserved - the right to keep arms should remain uninfringed. Original intent scholars say that the intended effect on the world should be preserved, and then we have to decide what that is - to keep flintlock weapons legal, to keep military-grade weapons of the day legal, or something else?
It is the "Freedom of the press" argument. Does it mean that only "press" as it existed at the time is covered? The answer, in my opinion, based on the current body of law is "No" because we do not have a law on a books that restricted the freedom of the press to something other than a totalitty of abstract idea of "press" and abstract idea of "freedom". If we did, and if that law was found to be constitutional, then the newer law would have trumped the old one.
This applies to the existing argument. I simply believe that Gorsuch and Thomas arguments have been misinterpreted. They are not some evil masterminds that are able to speak out of two corners of their mouth. They are originalists and they are applying a very simple "is there a law that has been passed which is more specific and was not found to be unconstitutional that affects the current issue? Yes => defer to new law. No=> defer to the original law"
Sure, we agree on that. But Law X will interact with condition Y somehow, so the question is what property of X is preserved when addressing Y. This is a pretty fundamental debate between constitutional scholars, not just a lecture on how laws work.
The classic example of a textualist or original meaning position is a broad view of the Second Amendment. Ignoring the 'militia' issue, Law X says "the right of the people to keep and bear arms shall not be infringed". Condition Y is the development of new types of arms after the amendment was ratified. Textualists and original meaning scholars say that the text of the law should be preserved - the right to keep arms should remain uninfringed. Original intent scholars say that the intended effect on the world should be preserved, and then we have to decide what that is - to keep flintlock weapons legal, to keep military-grade weapons of the day legal, or something else?
My point is that the decision today used original intent reasoning - law X established a right without without imagining Y, so Y should not be supported by X. But the textualist position is to apply the existing text of X to Y whether or not Y was even envisioned.
Gorsuch and Thomas are long-standing textualists, and I'm arguing that they took a basically non-textualist position today for political reasons.
"Law says X. New condition Y shows up. The law does not magically become X' where X' accommodates for Y."
But that's exactly what the majority decision here is saying! "Since class actions didn't exist back when the NLRA was enacted, we need to accommodate the NLRA for class actions" The court literally made up what they felt should happen!
If you read her dissent through to the end, she rightly points out that if the FAA were to hold over the NLRA then it would also hold over the Civil Rights Act, which is clearly not what Congress intended. See also her (well-cited) argument about specific vs. general legislation, as well the fact that the NLRA was written and enacted after the FAA. In fact, if you're on the side of "SCOTUS... starting to uplold the laws as they are on the books", then you're on Ginsburg's side here. Gorsuch & co. are really reaching.
The ruling today essentially says that if the FAA is ever in conflict with any other piece of legislation that it holds supreme. This is literally unprecedented.
Arbitration trumps ALL your rights. When arbitration is mentioned, it superceeds all your rights.
The conservatives love it because it means their greed rules over all other laws. It is federal which means it superceeds states. As long as they are in enough power, you are ruled by their greed.
One new development here is that the FAA apparently trumps everything not expressly exempt from it. Used to be that later laws preempt conflicting prior laws. The FAA should be called the Class Action Preemption Act because of what it effectively turned into.
It is ROLRA, the Rule Of Law Preemption Act. Once the FAA is invoked, all other laws fall by the wayside. You have no rights, as they are waived. The arbiter is not required to follow any other laws.[1] Manifest disregard for the law is insufficient to halt or reverse arbitration. You are no longer under the rule of law, but under corporate rule.
Yes, that's how the laws work. Future laws narrow/refine previous ones unless they are found to be unconstitutional on specific grounds or spell out exceptions.
We have been running with courts writing laws for years -- banana republics had less judicial interference into purview of legislative branch/executive branch. Now the rubber band is snapping the other way and those who have been happy at letting courts to write laws because it was their men/women on courts are now freaking out. Just wait until Kennedy retires in August and Trump gets another originalist there -- outsource unpopular legislation to courts group is in for a world of hurt for decades.
Edit: Not liking that water is wet does not change that the water is wet. Downvotes are not going to change this SCOTUS decision or other coming SCOTUS decision. Neither would they change a retirement of a swing vote and neither would they change that it will happen when Trump is in office and republicans control the Senate.
Except for Gorsuch, who is new, the same justices ruled to throw out the Voting Rights Act coverage formula because they felt the criteria set 40 years ago was too old. There's no blind interpretation of the law, justices make a decision anchored at least in part by their poltics and work backwards to justify it.
Perhaps open-source software licenses should start including a stipulation that anybody using open-source software in any product they produce or consume, must submit to arbitration for any software patent suits.
This is indeed a great verdict. It was 5-4 decision with all 5 conservative appointed judged voting in favour. Had Hillary won elections it would have been other way round.
A lot of people see SCOTUS decisions and think the matter closed, but congress with the flick of a pen could completely ban arbitration for employee contracts.
The employer/employee relationship is by its nature power imbalanced. If employers band together and all require arbitration (as they likely will via a standardised templated contract) employees cannot do much.