[nathanaldensr]

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!

[koolba]

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.

[magicalist]

In addition to giobox's points,

> This isn't disappointing at all as it reflects the state of the laws as they're currently on the books.

4 out of 9 supreme court justices disagree with the ruling, so this really isn't the narrative to go with.

[s2g]

Kind of sad that if it's fucking people over in favor of corportations, you can always guess the 4.

[latortuga]

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.

[bhups]

> 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.

[kup0]

Can't it be argued that SCOTUS's positions:

1. FAA is less broad than NRLA

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

[s73v3r_]

"But...it does respect the law on the books."

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.

[bhups]

> No, it absolutely does not.

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.

[gowld]

Your concern is valid, and is the domain of anti-trust law.

[giobox]

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.

Disappointing is the right word.

[cookiecaper]

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).

[bhups]

> 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.

[TheCoelacanth]

> 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.

[1] https://www.drinkerbiddle.com/insights/publications/2017/05/...

[makomk]

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.

[cookiecaper]

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.

[bhups]

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.

[1] https://en.wikipedia.org/wiki/Tyranny_of_the_majority

[cookiecaper]

> 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.

Yeah, I'm not claiming that technology solves things. I'm claiming the opposite, at least as far as our current government processes are concerned. Those processes have effectively been "broken" by changes in communication and movement.

This is an example. Liberals are aghast that the court didn't overstep their constitutional function here. Conservatives are happy that the process was followed, but they're not really happy that companies can effectively force employees into kangaroo court.

From a state's rights perspective, there's no reason that the federal government should be dealing with any of this really, states should be plenty capable of handling employment law. The federal government exists to set tariffs, administer borders and national defense, and ratify treaties. But because people and information can now move so freely, we've spent the last 100 years, more or less, ignoring the on-paper purview of federal and state governments.

You can say "Get Congress to pass a law" all you want but it's little consolation (in part because Congress is paralyzed in this environment). I would guess that most Americans on both sides of aisle want employees to be able to sue their employers in these cases -- hardly an instance of "virulent polarization" -- but that message is getting obscured by pedantry and partisanship on the boundaries of judicial interpretation. There are many similar issues, where most people don't really disagree per se, but the media and politicians still make sure things are arranged for maximum loyalty exploitation.

> Any American that argues "each state will handle things on its own" is just making the same argument that a European might make

Yeah, I'm a conservative, I understand and support the argument for state's rights, and I know how it's supposed to work theoretically. And before you point at the EU too enthusiastically, ask yourself how a similar situation would've played out there.

> Federalism was never about the logistics of walking to state lines.

I mean, it may not have been about it, but it was much more practical in a pre-telecommunication, pre-automobile, pre-airplane world.

Because I support state's rights, I recognize that we need to be realistic about things and make reasonable adaptations. It's not reasonable to pretend that the massive changes in movement and communication don't impact the way our republic functions.

Dogmatically grasping to processes established 200 years ago is only convincing everyone else that conservatism and governance by ruthless, cold pedantry are inextricable. That's bad. Maintaining conservative principles is not necessarily the same as enslaving oneself to the heartless rehearsal of dead scripts.

[gowld]

We must occasionally remind ourselves that the Supreme Court ruled to uphold slavery, so injustice under law is not a recent phenomenon.

[nathanaldensr]

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.

[s2g]

Absolutely.

The 7th amendment is dead.

[rayiner]

> 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.

[rocqua]

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.

[emaginniss]

That's called "consideration" and it's to prevent a contract where only one side is being obligated to do something.

[s73v3r_]

Except the court has also ruled that simply keeping your job is sufficient "consideration".

[Karishma1234]

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.

[s73v3r_]

"The verdict seems very consistent with the existing laws "

How can it be consistent with existing laws if the laws never mentioned arbitration at the time?

[Analemma_]

> "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.

[secabeen]

Would it work to ban required arbitration agreements in contracts of Adhesion? That seems like a nice, simple solution.