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.
The supreme court is not a legislative body. It's fun when your side wins, but that's essentially the same as hoping for a benevolent dictator.
The most important SCOTUS cases are constitutional ones limiting the legislative branch, not becoming a second legislature.
e.g.
https://en.wikipedia.org/wiki/Dodd%E2%80%93Frank_Wall_Street...
https://en.wikipedia.org/wiki/Credit_CARD_Act_of_2009
https://en.wikipedia.org/wiki/Patient_Protection_and_Afforda...
https://en.wikipedia.org/wiki/Lilly_Ledbetter_Fair_Pay_Act_o...
etc.
It's certainly not going to do anything if the people assume advocacy is a lost cause and give up without even trying.
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
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.
Here is them overturning attempts to protect the public with courts of law: https://www.forbes.com/sites/eriksherman/2017/10/25/republic...
The President is also involved (or a veto override). Neither seems likely in the near future.
> 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.
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....
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.
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.
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.
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.
> 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.
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.
> 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.
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).
The 7th amendment is dead.
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.
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.
> 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.
How can it be consistent with existing laws if the laws never mentioned arbitration at the time?
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.
I don't think the courts would miss this, so I am probably wrong here somewhere. Would anyone care to correct me?
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.
https://leginfo.legislature.ca.gov/faces/billTextClient.xhtm...
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.
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.
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.
- SCOTUS