Arbitration Everywhere, Stacking the Deck of Justice
October 31, 2015 11:35 AM   Subscribe

 
I'd really love to know the logic under which Roberts didn't recuse himself from this decision...
posted by Merzbau at 12:20 PM on October 31, 2015 [2 favorites]


He probably let that decision be made by a neutral arbitrator.
posted by mrgoat at 12:24 PM on October 31, 2015 [3 favorites]


Mandatory arbitration clauses should be banned in contracts of adhesion.

They're useful tools when companies negotiate with each other over their business deals, but in non-negotiated contracts, they're simply a way for the more powerful party to screw over the person who isn't in a position to set the terms. And these days, it's not like you can simply walk to another provider who'll sell you the same service without the arbitration clause -- in some lines of business, everyone has one.
posted by jacquilynne at 12:28 PM on October 31, 2015 [30 favorites]


You want to fix this, end racist voter disenfranchisement in the South, overturn Citizens United, protect women's right to choose, and more?

Vote Hillary Vote Hillary Vote Hillary

...and then re-elect her in 2020. 16 straight years of Democratic appointees to the Supreme Court will solve a tremendous amount of the current bullshit going on right now.
posted by leotrotsky at 12:34 PM on October 31, 2015 [31 favorites]


Roberts gave the following statement when reached for comment, "Unconscionability? What the hell is that?"
posted by Talez at 12:38 PM on October 31, 2015


Mandatory arbitration plus a waiver of class actions is pretty standard in every service you sign up for. It basically guarantees that consumers will be screwed and we'll have no way to deal with it. They should be declared unconscionable in contracts between companies and individuals. I've even seen this combination of clauses show up in employment contracts. No plaintiffs lawyer will take your lawsuit for wage theft if they can't get class status. Which means your employer will probably skirt wage and hour laws and you'll just have to sit there and take it.
posted by Arbac at 12:38 PM on October 31, 2015 [3 favorites]


I wouldn't be so sure about that, leotrotsky. Some of her biggest campaign contributors are named in the article.
posted by mrgoat at 12:40 PM on October 31, 2015 [7 favorites]


Pending now is Campbell-Ewald v. Gomez, in which the court could rule that if a company facing possible class-action litigation (before a class is certified) offers to settle with the named plaintiffs for more than the injury they suffered as individuals, they have to take it and end the suit without getting anything for the rest of the class. And that's only one of the class-action suits on this year's docket.
posted by Holy Zarquon's Singing Fish at 12:43 PM on October 31, 2015


Which means your employer will probably skirt wage and hour laws and you'll just have to sit there and take it.

I can just here the "why don't they just sue?" remarks from here.
posted by Talez at 12:45 PM on October 31, 2015 [3 favorites]


Glad to see that all is well with the state of American kleptocracy.
posted by nubs at 1:03 PM on October 31, 2015 [3 favorites]


Have you ever done a chargeback on a credit card? How much more fair would it have been if you'd had to file a lawsuit instead?
posted by Hatashran at 1:08 PM on October 31, 2015


b1tr0t: "Are we talking about the same Clinton whose campaign is funded by the financial companies who love these mandatory arbitration clauses the most?"

Yes, we are... in a thread about an article that cites an anti-arbitration decision by (pre-SCOTUS) Sonia Sotomayor, as well as a dissent by Justice Elena Kagan to a pro-arbitration opinion.

Or are we not talking about nominees from the same Obama whose campaign was funded by the financial companies who love these mandatory arbitration clauses the most?
posted by Riki tiki at 1:34 PM on October 31, 2015 [5 favorites]


Mod note: Please don't make this election year any more election-y than it must be, thanks.
posted by restless_nomad (staff) at 2:01 PM on October 31, 2015 [11 favorites]


Wait, so we're discussing an article about the gutting of class actions, only made possible as a result a 5-4 Supreme Court decision that splits right down the party lines, and you want us to keep politics out of it?

You can't have a full conversation of this topic without discussing the politics of the Supreme Court, and that requires talk about appointees, and therefore elections.
posted by leotrotsky at 2:39 PM on October 31, 2015 [11 favorites]


In Canada our Supreme Court upheld the binding arbitration clause , notably in
Dell Computer Corp. v. Union des consommateurs.

This has resulted in some provinces legislating against it.
For example in Ontario the Consumer Protection Act applies and states :

Limitation on effect of term requiring arbitration

(2) .. any term or acknowledgment in a consumer agreement or a related agreement that requires or has the effect of requiring that disputes arising out of the consumer agreement be submitted to arbitration is invalid insofar as it prevents a consumer from exercising a right to commence an action in the Superior Court of Justice given under this Act.

and

Class proceedings

8. (1) A consumer may commence a proceeding on behalf of members of a class under the Class Proceedings Act, 1992 or may become a member of a class in such a proceeding in respect of a dispute arising out of a consumer agreement despite any term or acknowledgment in the consumer agreement or a related agreement that purports to prevent or has the effect of preventing the consumer from commencing or becoming a member of a class proceeding
posted by yyz at 3:03 PM on October 31, 2015 [6 favorites]


leotrotsky is right.

Whether or not you like Clinton, putting her in office will almost certainly result in liberal supreme court appointments, and at least thus far the supreme court seems fairly resistant to monetary influence, unlike the other two branches of our fine government. Since a lot of these decisions end up at the supreme court, which currently has an 82 year old (Ginsburg), two 79 year olds (Kennedy and Scalia), and a 77 year old (Breyer), it is very likely that the next president will have one or more appointments during their tenure. Obama had two.

That alone is very good reason to want a democrat in office, even if they are awful in other ways.
posted by zug at 4:48 PM on October 31, 2015 [2 favorites]


What percentage of supreme court votes are strict party line votes? Can we just replace the whole process of appearing before the supreme court with a box that blinks for 5 seconds and spits out a piece of paper with the decision?
posted by RustyBrooks at 4:52 PM on October 31, 2015 [1 favorite]


Not many supreme court decisions are party line splits. The vast majority are not. The 5-4 decisions happen to be the most visible and reported on.
posted by jpe at 5:30 PM on October 31, 2015 [2 favorites]


That is true in absolute terms, but relative to historical norms, the Roberts Court has had notably more 5-4 decisions than has been typical throughout our history. The trend didn't start with him, as the chart shows, but certainly Roberts has done nothing to reverse it.

Of course not all of these are the five conservatives vs. the four liberals, but regardless, it's not a sign of a healthy Court when they can't find a way to an opinion that can get more than five votes.
posted by tonycpsu at 7:05 PM on October 31, 2015 [3 favorites]


Binding arbitration is about as fair as getting paid in company scrip, and should be just as illegal.
posted by ckape at 9:44 PM on October 31, 2015 [1 favorite]


RustyBrooks: "What percentage of supreme court votes are strict party line votes? Can we just replace the whole process of appearing before the supreme court with a box that blinks for 5 seconds and spits out a piece of paper with the decision?"

As long as I got Mike Nesmith arbitratin' for me, I'm good.
posted by symbioid at 10:59 AM on November 1, 2015


Part II of the story is up today, focusing on the kangaroo court nonsense and conflicts of interest that can happen when cases actually do go to arbitration.
posted by zachlipton at 8:10 PM on November 1, 2015


You want to fix this, end racist voter disenfranchisement in the South, overturn Citizens United, protect women's right to choose, and more?

Vote Hillary Vote Hillary Vote Hillary

posted by leotrotsky at 12:34 PM on October 31 [27 favorites +] [!]
sheesh next you'll be telling us to vote for Miliukov.
posted by You Can't Tip a Buick at 9:58 PM on November 1, 2015


And today we get Part III, taking on the insanity that is religious arbitration. Hint: it's not Sharia law you should be worried about.
posted by zachlipton at 8:40 PM on November 2, 2015 [3 favorites]




In Religious Arbitration, Scripture Is the Rule of Law

crap, should have previewed.
posted by T.D. Strange at 9:44 AM on November 3, 2015 [1 favorite]


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