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> 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. |