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FlamingLiberal posted:Buckle up This is DOA, right? I can count a lock of 5 already I mean, go through the motions; make them look like the illegitimates they are. But no one's getting their hopes up, are they?
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Apr 22, 2019 14:57
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Interesting, so in addition to interpreting the Constitution, the SCOTUS also can clarify what laws mean. For example if a law was passed that just said "It is only legal for a person to buy 1+1 potatoes per day", then someone can petition the SCOTUS to help them figure out exactly how many potatoes they are allowed to buy per day.
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Apr 22, 2019 15:08
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qkkl posted:Interesting, so in addition to interpreting the Constitution, the SCOTUS also can clarify what laws mean. For example if a law was passed that just said "It is only legal for a person to buy 1+1 potatoes per day", then someone can petition the SCOTUS to help them figure out exactly how many potatoes they are allowed to buy per day. Federal laws only, of course. And the Court doesn't usually take petitions to figure out what a law means unless two lower circuits disagree about what the law means already.
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Apr 22, 2019 15:11
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https://twitter.com/washingtonpost/status/1120316699490889729 So how likely is this to go Trump’s way at SCOTUS?
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Apr 22, 2019 15:18
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Jealous Cow posted:https://twitter.com/washingtonpost/status/1120316699490889729 It entirely depends if Roberts wants to ignore legality and just rule for Trump because he wants to. Trump has no legal leg to stand on but that hasn't stopped them in the past.
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Apr 22, 2019 16:31
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I think there's probably a colorable claim that congressional requests for tax returns have to arise from some sort of legitimate investigative purpose, rather than a desire to embarrass political opponents.
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Apr 22, 2019 17:42
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Dead Reckoning posted:I think there's probably a colorable claim that congressional requests for tax returns have to arise from some sort of legitimate investigative purpose, rather than a desire to embarrass political opponents. But unlike say, a criminal trial, the bar for “legitimate investigative purpose” would be “of substantial interest to the public”, given that Congressional investigations are inherently political. That bar would be easily cleared for the financial documents of any public figure, since failing to disclose financial documents can hide conflicts of interest relevant to holding office.
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Apr 22, 2019 17:50
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Dead Reckoning posted:I think there's probably a colorable claim that congressional requests for tax returns have to arise from some sort of legitimate investigative purpose, rather than a desire to embarrass political opponents. No that’s ridiculous. The line between what is a “legitimate investigative purpose” and what is merely an attempt to embarrass is political. Like, that distinction is obviously totally unmanageable. That’s so clear that it makes me think you’re speaking in bad faith. Ogmius815 fucked around with this message at 17:59 on Apr 22, 2019 |
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Apr 22, 2019 17:55
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Ogmius815 posted:No that’s ridiculous. The line between what is a “legitimate investigative purpose” and what is merely an attempt to embarrass is political. Have you met DR?
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Apr 22, 2019 18:00
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Stickman posted:But unlike say, a criminal trial, the bar for “legitimate investigative purpose” would be “of substantial interest to the public”, given that Congressional investigations are inherently political. That bar would be easily cleared for the financial documents of any public figure, since failing to disclose financial documents can hide conflicts of interest relevant to holding office. I think the argument that an elected official's financial activity is of public interest is the stronger argument, and that the law as written allows Congress to get anyone's taxes for any reason at all, but I think Trump's lawyers have non-crazy, non-frivilous arguments they can make for resisting releasing his taxes.
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Apr 22, 2019 18:58
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Dead Reckoning posted:I think the argument that an elected official's financial activity is of public interest is the stronger argument, and that the law as written allows Congress to get anyone's taxes for any reason at all, but I think Trump's lawyers have non-crazy, non-frivilous arguments they can make for resisting releasing his taxes. Such as?
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Apr 22, 2019 19:03
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Dead Reckoning posted:I think the argument that an elected official's financial activity is of public interest is the stronger argument, and that the law as written allows Congress to get anyone's taxes for any reason at all, but I think Trump's lawyers have non-crazy, non-frivilous arguments they can make for resisting releasing his taxes. They have no good faith arguments. The law is clear. Even without the specific law re: tax returns, congressional subpoena power would allow them access to just about any record at all on anyone over whom congress holds the power of impeachment, that is, any federal official: quote:The House of Representatives shall choose their Speaker and other Officers; and shall have the sole Power of Impeachment. quote:As announced in Wilkinson v. United States,[7] a Congressional committee must meet three requirements for its subpoenas to be "legally sufficient." First, the committee's investigation of the broad subject area must be authorized by its chamber; second, the investigation must pursue "a valid legislative purpose" but does not need to involve legislation and does not need to specify the ultimate intent of Congress; and third, the specific inquiries must be pertinent to the subject matter area that has been authorized for investigation. So they have the power to impeach; impeachment is therefore a "valid legislative purpose"; financial records are a valid ask subsequent to an impeachment investigation; bam, we're done. There's not even a valid separation of powers issue because it's impeachment and thus part of congressional oversight. The specific law on top of that general power is just gilding the lily.
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Apr 22, 2019 19:07
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Congress, AFAIK, has not opened an impeachment investigation into the president yet. Stickman posted:Such as? Let me put it this way: I think "elected officials' financial activity is a matter of significant public interest" is a stronger and more compelling argument than "people have a right to privacy and congress should need to have a reason to demand someone's tax returns beyond 'we don't like them and we don't like their politics'", but I don't think that means that the latter argument is insane or frivolous. I also think the law as written most likely allows Congress to get anyone's tax returns for any reason at all, and I'm not sure I agree with that. For example, I might feel differently if Congress was demanding to see the Koch bros tax returns. Dead Reckoning fucked around with this message at 19:14 on Apr 22, 2019 |
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Apr 22, 2019 19:11
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Dead Reckoning posted:congress should need to have a reason to demand someone's tax returns beyond 'we don't like them and we don't like their politics'" This is nonsense though because there are all sorts of obviously legitimate reasons to demand Trump's tax returns and other financial records. We aren't talking about this in the abstract, t's a particular instance. The issue is Trump in particular not a randomly-selected generic politician. Dead Reckoning posted:
Maybe, but that doesn't matter because Congress isn't trying to see the Koch's tax returns.
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Apr 22, 2019 19:13
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Condolences to the LGBT community. Jealous Cow posted:https://twitter.com/washingtonpost/status/1120316699490889729 The SCOTUS would have to make up more excuses than they did when they ignored the 14th Amendment and gutted the VRA, so I give it 5:4 odds.
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Apr 23, 2019 01:10
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thankfully my state has protections in place already. Still doesn’t prevent me from wanting to drop kick my head into the ocean 🙃
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Apr 23, 2019 01:29
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PenguinKnight posted:thankfully my state has protections in place already. Still doesn’t prevent me from wanting to drop kick my head into the ocean 🙃 Mine doesn't, so I guess nothing would change on that end. If the SC does rule in favor of LGBT protections, though, I wonder if Rep. Moon will behead a chicken while ranting on Facebook Live again. ...I have no idea how that man keeps getting elected.
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Apr 23, 2019 01:43
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Do we have the trump filing linked? I've heard it's a fantastic work of fringe talking points, but I need to see it myself.
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Apr 23, 2019 02:25
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Discendo Vox posted:Do we have the trump filing linked? I've heard it's a fantastic work of fringe talking points, but I need to see it myself. https://twitter.com/ssamcham/status/1120415591788105730 also lol they rely heavily on kilbourn v. thompson (103 U.S. 168), an 1880 case distinguished repeatedly in the last 140 years, and they conspicuously omit those further rulings not going to look the other cases up but i strongly assume the reply is going to own them hard about this supposed authority eke out fucked around with this message at 02:51 on Apr 23, 2019 |
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Apr 23, 2019 02:42
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quote:The Democrat Party, with its newfound control of the U.S. House of Representatives, has declared all-out political war against President Donald J. Trump. Subpoenas are their weapon of choice. This sounds like the start of an alternate reality political action movie that I want to watch the gently caress out of
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Apr 23, 2019 03:44
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"Democrat Party"
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Apr 23, 2019 07:01
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I find it kind of crazy that Roberts is willing to take on some of these questions, they're some very hot buttons and there's already a seething core of people whispering Court Packing over Kavanaugh and Gorsuch. If he 5/4s a giant slate of power-grabbing and minority-screwing bullshit through right before an election he is risking the worst case scenario and counting on nothing but Decorum and/or a Base Voter Motivation Supercharge to save him. Not the worst bet EVER, but it seems insanely stupid when he's got the court for at least the next 20-30 years guaranteed and can do as much damage as he wants in that time no matter who wins the next election if he just lets the heat die down.
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Apr 23, 2019 09:20
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Sanguinia posted:I find it kind of crazy that Roberts is willing to take on some of these questions, they're some very hot buttons and there's already a seething core of people whispering Court Packing over Kavanaugh and Gorsuch. If he 5/4s a giant slate of power-grabbing and minority-screwing bullshit through right before an election he is risking the worst case scenario and counting on nothing but Decorum and/or a Base Voter Motivation Supercharge to save him. It only takes four justices to say they want to hear a case, so Roberts might not even be involved, regardless of the liberal wing. But on the other hand, Republicans seem hell-bent on using all their power while they've got it, so 
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Apr 23, 2019 10:04
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 One opinion, which I will quote in full:quote:EMULEX CORPORATION, ET AL., PETITIONERS v. GARY VARJABEDIAN, ET AL. This case was about : Cert Petition posted:Whether the U.S. Court of Appeals for the 9th Circuit correctly held, in express disagreement with five other courts of appeals, that Section 14(e) of the Securities Exchange Act of 1934 supports an inferred private right of action based on the negligent misstatement or omission made in connection with a tender offer. 888 F.3d 399, 401 (9th Cir. 2018) posted:The district court dismissed Plaintiff's complaint because he failed to plead a strong inference of scienter for Defendants' alleged violations of Section 14(e) of the Securities Exchange Act of 1934, 15 U.S.C. § 78n(e) ("Exchange Act"). In so concluding, the district court followed out-of-circuit authorities holding that Section 14(e) claims require proof of scienter. The district court noted, however, that the Ninth Circuit had yet to decide whether Section 14(e) claims require plaintiffs to plead that defendants acted with scienter. We now hold that Section 14(e) of the Exchange Act requires a showing of negligence, not scienter. Accordingly, we reverse the dismissal of the complaint and remand the case to the district court for it to reconsider Defendants' motion to dismiss under a negligence standard.
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Apr 23, 2019 15:44
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lmao apparently Roberts literally had the nerve to argue that without this question on the census, they couldn't adequately enforce the Voting Rights Act pretty much locks in the fact that it's going to be 5-4 and at Trump v. Hawai'i levels of loving shamelessness
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Apr 23, 2019 17:00
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eke out posted:lmao apparently Roberts literally had the nerve to argue that without this question on the census, they couldn't adequately enforce the Voting Rights Act The one that never even existed until after the census stopped asking? America is hosed, I need to leave this shithole country and never look back
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Apr 23, 2019 17:13
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The VRA was enacted after they stopped asking the question 
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Apr 23, 2019 17:32
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eke out posted:lmao apparently Roberts literally had the nerve to argue that without this question on the census, they couldn't adequately enforce the Voting Rights Act Thomas could come up with something off the wall based on the 1800 census.
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Apr 23, 2019 17:44
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hobbesmaster posted:Thomas could come up with something off the wall based on the 1800 census. there's a reasonable chance it's like 3-1-1-4 or something really stupid, with the conservative justices only agreeing on "trump wins"
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Apr 23, 2019 18:08
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eke out posted:lmao apparently Roberts literally had the nerve to argue that without this question on the census, they couldn't adequately enforce the Voting Rights Act How long until his opinions are just pages of Pepe memes
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Apr 23, 2019 23:32
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eke out posted:lmao apparently Roberts literally had the nerve to argue that without this question on the census, they couldn't adequately enforce the Voting Rights Act Roberts makes me wish karma was real.
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Apr 23, 2019 23:47
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Evil Fluffy posted:Roberts makes me wish karma was real. he'll be reincarnated as dred scott
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Apr 24, 2019 00:01
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Assuming the argument is being put forth in good faith (and I know it isn't)...how does the citizenship question help enforce the VRA? I can't think of a way it would be helpful at all, never mind the lynchpin to enforcement. Every article I have found puts forth that Ross made that argument but what is the actual articulation for how it would help?
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Apr 24, 2019 02:27
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Raldikuk posted:Assuming the argument is being put forth in good faith (and I know it isn't)...how does the citizenship question help enforce the VRA? I can't think of a way it would be helpful at all, never mind the lynchpin to enforcement. Every article I have found puts forth that Ross made that argument but what is the actual articulation for how it would help? I guess we'll find out when the opinion arrives, since Roberts just kinda lobbed that one during questioning. Transcript posted:MS. UNDERWOOD: Mr. Chief Justice, and may it please the Court: Important to remember that the purpose of the Census is not only to count eligible voters.
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Apr 24, 2019 08:01
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FronzelNeekburm posted:I guess we'll find out when the opinion arrives, since Roberts just kinda lobbed that one during questioning. But it could be a purpose. Surprise pivot into anyone over 18 in the census saying thier a citizen is auto-registered for elections in thier state
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Apr 24, 2019 11:14
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mandatory lesbian posted:But it could be a purpose. Surprise pivot into anyone over 18 in the census saying thier a citizen is auto-registered for elections in thier state Counting eligible voters isn’t any purpose of the census. Apportionment is based on population, not population of voters or even population of citizens. It’s also only every ten years, so it wouldn’t be terribly good for registration.
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Apr 24, 2019 12:21
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Opinion! 5-4 opinion barring class arbitration and pissing off the liberal justices to the point where there are 4 separate dissenting opinions. LAMPS PLUS, INC., ET AL. v. VARELA Holding / Majority Opinion: The Federal Arbitration Act requires courts to enforce covered arbitration agreements according to their terms. In Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp., 559 U. S. 662 (2010), we held that a court may not compel arbitration on a classwide basis when an agreement is “silent” on the availability of such arbitration. Because class arbitration fundamentally changes the nature of the “traditional individualized arbitration” envisioned by the FAA, Epic Systems Corp. v. Lewis, 584 U. S. ___, ___ (2018) (slip op., at 8), “a party may not be compelled under the FAA to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so,” We now consider whether the FAA similarly bars an order requiring class arbitration when an agreement is not silent, but rather “ambiguous” about the availability of such arbitration. Petitioner Lamps Plus is a company that sells light fixtures and related products. In 2016, a hacker impersonating a company official tricked a Lamps Plus employee into disclosing the tax information of approximately 1,300 other employees. Soon after, a fraudulent federal income tax return was filed in the name of Frank Varela, a Lamps Plus employee and respondent here. Like most Lamps Plus employees, Varela had signed an arbitration agreement when he started work at the company. But after the data breach, he sued Lamps Plus in Federal District Court in California, bringing state and federal claims on behalf of a putative class of employees whose tax information had been compromised. Lamps Plus moved to compel arbitration on an individual rather than classwide basis, and to dismiss the lawsuit. In a single order, the District Court granted the motion to compel arbitration and dismissed Varela’s claims without prejudice. But the court rejected Lamps Plus’s request for individual arbitration, instead authorizing arbitration on a classwide basis. Lamps Plus appealed the order, arguing that the court erred by compelling class arbitration. The Ninth Circuit affirmed. The court acknowledged that Stolt-Nielsen prohibits forcing a party “to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so” and that Varela’s agreement “include[d] no express mention of class proceedings.” But that did not end the inquiry, the court reasoned, because the fact that the agreement “does not expressly refer to class arbitration is not the ‘silence’ contemplated in Stolt-Nielsen.” In Stolt-Nielsen, the parties had stipulated that their agreement was silent about class arbitration. Because there was no such stipulation here, the court concluded that Stolt-Nielsen was not controlling. The Ninth Circuit then determined that the agreement was ambiguous on the issue of class arbitration...The Ninth Circuit followed California law to construe the ambiguity against the drafter, a rule that “applies with peculiar force in the case of a contract of adhesion” such as this. Because Lamps Plus had drafted the agreement, the court adopted Varela’s interpretation authorizing class arbitration. ... We begin with jurisdiction. Section 16 of the FAA governs appellate review of arbitration orders. Varela contends that the Ninth Circuit lacked statutory jurisdiction because section 16 permits appeal from orders denying motions to compel arbitration, §16(a)(1)(B), but not orders granting such motions, This argument is beside the point, however, because Lamps Plus relies for jurisdiction on a different provision of section 16, section 16(a)(3). Section 16(a)(3) provides that an appeal may be taken from “a final decision with respect to an arbitration that is subject to this title.” We construed that provision in Green Tree Financial Corp.-Ala. v. Randolph, 531 U. S. 79 (2000), a case where, as here, the District Court had issued an order both compelling arbitration and dismissing the underlying claims. We held that such an order directing “the parties to proceed to arbitration, and dismiss[ing] all the claims before [the court], . . . is ‘final’ within the meaning of §16(a)(3), and therefore appealable.” Varela attempts to distinguish Randolph on the ground that the appeal here was taken by the party who sought an order to dismiss the claim and compel arbitration, Lamps Plus. He claims the company “lacked standing to appeal the dismissal,” because the District Court’s order “provided precisely the relief Lamps Plus sought.” But Lamps Plus did not secure the relief it requested. It sought an order compelling individual arbitration. What it got was an order rejecting that relief and instead compelling arbitration on a classwide basis. We have explained—and will elaborate further below—that shifting from individual to class arbitration is a “fundamental” change, that “sacrifices the principal advantage of arbitration” and “greatly increases risks to defendants.” Lamps Plus’s interest in avoiding those consequences gives it the “necessary personal stake in the appeal” required by our precedent. … The Ninth Circuit applied California contract law to conclude that the parties’ agreement was ambiguous on the availability of class arbitration….Following our normal practice, we defer to the Ninth Circuit’s interpretation and application of state law and thus accept that the agreement should be regarded as ambiguous. … We therefore face the question whether, consistent with the FAA, an ambiguous agreement can provide the necessary “contractual basis” for compelling class arbitration. We hold that it cannot—a conclusion that follows directly from our decision in Stolt-Nielsen. Class arbitration is not only markedly different from the “traditional individualized arbitration” contemplated by the FAA, it also undermines the most important benefits of that familiar form of arbitration.The statute therefore requires more than ambiguity to ensure that the parties actually agreed to arbitrate on a classwide basis. … Although parties are free to authorize arbitrators to resolve [gateway] questions [as to if there’s a valid arbitration agreement or if it covers a particular claim], we will not conclude that they have done so based on “silence or ambiguity” in their agreement, because “doing so might too often force unwilling parties to arbitrate a matter they reasonably would have thought a judge, not an arbitrator, would decide.” We relied on that same reasoning in Stolt-Nielsen, and it applies with equal force here. Neither silence nor ambiguity provides a sufficient basis for concluding that parties to an arbitration agreement agreed to undermine the central benefits of arbitration itself. … The Ninth Circuit reached a contrary conclusion based on California’s rule that ambiguity in a contract should be construed against the drafter, a doctrine known as contra proferentem. The rule applies “only as a last resort” when the meaning of a provision remains ambiguous after exhausting the ordinary methods of interpretation. … We recently reiterated that courts may not rely on state contract principles to “reshape traditional individualized arbitration by mandating classwide arbitration procedures without the parties’ consent.” But that is precisely what the court below did, requiring class arbitration on the basis of a doctrine that “does not help to determine the meaning that the two parties gave to the words, or even the meaning that a reasonable person would have given to the language used.” Such an approach is flatly inconsistent with “the foundational FAA principle that arbitration is a matter of consent.” … Courts may not infer from an ambiguous agreement that parties have consented to arbitrate on a classwide basis. The doctrine of contra proferentem cannot substitute for the requisite affirmative “contractual basis for concluding that the part[ies] agreed to [class arbitration].” We reverse the judgment of the Court of Appeals for the Ninth Circuit and remand the case for further proceedings consistent with this opinion. Lineup: Roberts, joined by Thomas, Alito, Gorsuch, and Kavanaugh. Concurrence by Thomas. Dissent by Ginsburg, joined by Breyer and Sotomayor. Dissent by Breyer. Dissent by Sotomayor. Dissent by Kagan, joined by Ginsburg, Breyer, and (for Part II) Sotomayor. Other Opinions: Concurrence (Thomas): [W]here an agreement is silent as to class arbitration, a court may not infer from that silence that the parties agreed to arbitrate on a class basis. Here, the arbitration agreement between Varela and Lamps Plus is silent as to class arbitration....This agreement provides no “contractual basis” for concluding that the parties agreed to class arbitration, and I would therefore reverse on that basis. The Court instead evaluates whether California’s contra proferentem rule, as applied here, “‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives’ of the FAA.” I remain skeptical of this Court’s implied pre-emption precedents, but I join the opinion of the Court because it correctly applies our FAA precedents. Dissent (Ginsburg, joined by Breyer and Sotomayor): Joining JUSTICE KAGAN’s dissenting opinion in full, I write separately to emphasize once again how treacherously the Court has strayed from the principle that “arbitration is a matter of consent, not coercion.” Congress enacted the Federal Arbitration Act (FAA) in 1925 “to enable merchants of roughly equal bargaining power to enter into binding agreements to arbitrate commercial disputes.” The Act was not designed to govern contracts “in which one of the parties characteristically has little bargaining power.” … The Court has relied on the FAA, not simply to overcome once-prevalent judicial resistance to enforcement of arbitration disputes between businesses. In relatively recent years, it has routinely deployed the law to deny to employees and consumers “effective relief against powerful economic entities.” … Today’s decision underscores the irony of invoking “the first principle” that “arbitration is strictly a matter of consent,” ante, at 7 (internal quotation marks and alterations omitted), to justify imposing individual arbitration on employees who surely would not choose to proceed solo. Respondent Frank Varela sought redress for negligence by his employer leading to a data breach affecting 1,300 employees. The widely experienced neglect he identified cries out for collective treatment. Blocking Varela’s path to concerted action, the Court aims to ensure the authenticity of consent to class procedures in arbitration. Shut from the Court’s sight is the “Hobson’s choice” employees face: “accept arbitration on their employer’s terms or give up their jobs.” Dissent (Breyer): Although I join JUSTICE GINSBURG’s and JUSTICE KAGAN’s dissents in full, I also dissent for another reason. In my view, the Court of Appeals lacked jurisdiction to hear this case. Consequently, we lack jurisdiction as well. My reason for reaching this conclusion is the following. The Federal Arbitration Act, at §4, says that a “court,” upon being satisfied that the parties have agreed to arbitrate a claim, “shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement.” Section 16 of the Act then says that “an appeal may not be taken from an interlocutory order . . . directing arbitration to proceed under section 4 of this title.” And directing arbitration to proceed is just what the District Court did here. … I recognize that Lamps Plus is dissatisfied with the arbitration that the District Court ordered here. But the District Court’s order nonetheless granted the motion compelling arbitration, leaving Lamps Plus to bring its claim to an appellate court only after the arbitration is completed. I believe we should enforce the statutory provisions that lead to this conclusion. … We held in Stolt-Nielsen that a party may not be compelled to “submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so.” We did not hold that class arbitration is not arbitration at all. And because class arbitration is arbitration, the District Court’s interpretation of Lamps Plus and Varela’s arbitration agreement to permit class arbitration could not create appellate jurisdiction over the District Court order compelling the parties to arbitrate their dispute. Nor did we hold in Stolt-Nielsen (or anywhere else) that §16 of the FAA permits appeals of interlocutory orders directing arbitration to proceed, so long as the order incorporates some ruling that one party dislikes. If that were the rule, then §16’s limitations on appellate jurisdiction would be near meaningless. Consequently, the courts of appeals have—rightly, I believe—long recognized that they lack jurisdiction over appeals from orders that compel arbitration, “albeit not in the ‘first-choice’” manner of the party that moved to compel. … Consequently, I would hold that we lack jurisdiction over this case. But because the Court accepts jurisdiction and decides the substantive legal question before us, I shall do the same. And in respect to that question I agree with JUSTICE GINSBURG and JUSTICE KAGAN, and I join their dissents. Dissent (Sotomayor): I join JUSTICE GINSBURG’s dissent in full and Part II of JUSTICE KAGAN’s dissent. This Court went wrong years ago in concluding that a “shift from bilateral arbitration to class-action arbitration” imposes such “fundamental changes” that class-action arbitration “is not arbitration as envisioned by the” Federal Arbitration Act (FAA). A class action is simply “a procedural device” that allows multiple plaintiffs to aggregate their claims, “[f]or convenience . . . and to prevent a failure of justice,” Where, as here, an employment agreement provides for arbitration as a forum for all disputes relating to a person’s employment and the rules of that forum allow for class actions, an employee who signs an arbitration agreement should not be expected to realize that she is giving up access to that procedural device. In any event, as JUSTICE KAGAN explains, the employment contract that Frank Varela signed went further. It states that “‘any and all disputes, claims or controversies arising out of or relating to[] the employment relationship between the parties[] shall be resolved by final and binding arbitration.’” It adds that Varela and Lamps Plus “consent to the resolution by arbitration of all claims that may hereafter arise in connection with [Varela’s] employment.” And it provides for arbitration “‘in accordance with’” the rules of the arbitral forum, which in turn allow for class arbitration. That is enough to persuade me that the contract was at least ambiguous as to whether Varela in fact agreed that no class-action procedures would be available in arbitration if he and his co-workers all suffered the same harm “relating to” and “in connection with” their “employment.” And the court below was correct to turn to state law to resolve the ambiguity. The Court today reads the FAA to pre-empt the neutral principle of state contract law on which the court below relied. I cannot agree. Dissent (Kagan, joined by Ginsburg, Breyer and [for Part II] Sotomayor): The Federal Arbitration Act (FAA or Act) requires courts to enforce arbitration agreements according to their terms. But the Act does not federalize basic contract law. Under the FAA, state law governs the interpretation of arbitration agreements, so long as that law treats other types of contracts in the same way. That well-established principle ought to resolve this case against Lamps Plus’s request for individual arbitration. In my view, the arbitration agreement Lamps Plus wrote is best understood to authorize arbitration on a classwide basis. But even if the Court is right to view the agreement as ambiguous, a plain-vanilla rule of contract interpretation, applied in California as in every other State, requires reading it against the drafter—and so likewise permits a class proceeding here. The majority can reach the opposite conclusion only by insisting that the FAA trumps that neutral state rule whenever its application would result in class arbitration. That holding has no basis in the Act—or in any of our decisions relating to it (including the heavily relied-on Stolt-Nielsen). Today’s opinion is rooted instead in the majority’s belief that class arbitration “undermine[s] the central benefits of arbitration itself.” But that policy view—of a piece with the majority’s ideas about class litigation—cannot justify displacing generally applicable state law about how to interpret ambiguous contracts. I respectfully dissent. From its very beginning, the arbitration agreement between Lamps Plus and Frank Varela announces its comprehensive scope. The first sentence states: “[T]he parties agree that any and all disputes, claims or controversies arising out of or relating to[ ] the employment relationship between the parties[ ] shall be resolved by final and binding arbitration.” The phrase “any and all disputes, claims, or controversies” encompasses both their individual and their class variants—just as any other general category (e.g., any and all chairs) includes all particular types (e.g., desk and reclining). So Varela’s class action (which arose out of or related to his employment) was a “dispute, claim or controversy” that belonged in arbitration. The next paragraph continues in the same vein, by describing what Varela gave up by signing the agreement. “[A]rbitration,” the agreement says, “shall be in lieu of any and all lawsuits or other civil legal proceedings relating to my employment.” That is the language of forum selection: Any and all actions (both individual and class) that I could once have brought in court, I am agreeing now to bring in arbitration. The provision carries no hint of consent to surrender altogether—in arbitration as well as court—the ability to bring a class proceeding. Further on, the remedial and procedural terms of the agreement support reading it to authorize class arbitration. The arbitrator, according to the contract, may “award any remedy allowed by applicable law.” That sweeping provision easily encompasses classwide relief when the “any and all disputes” that the contract’s first sentence places in arbitration call for such remedies. And under the agreement, the arbitration shall be conducted “in accordance with” the rules of either of two designated arbitration providers—both of which furnish rules for arbitrators to conduct class proceedings. … [Part II, the part Sotomayor joins] Suppose, though, you think that my view of the agreement goes too far. Maybe you aren’t sure whether the phrase “any and all disputes, claims or controversies” must be read to include class “disputes, claims or controversies.” Or maybe you wonder whether the surrounding “I” and “my” references limit that phrase’s scope, rather than merely referring to one of the contract’s signatories. In short, you can see reasonable arguments on both sides of the interpretive dispute—for allowing, but also for barring, class arbitration. You are then in the majority’s position, “accept[ing]” the arbitration agreement as “ambiguous.” What should follow? Under California law (which applies unless preempted) the answer is clear: The agreement must be read to authorize class arbitration. That is because California—like every other State in the country—applies a default rule construing “ambiguities” in contracts “against their drafters.” … [T]he FAA does not federalize contract law. Except when state contract law discriminates against arbitration agreements. As this Court has explained, the FAA came about because courts had shown themselves “unduly hostile to arbitration.” To remedy that problem, Congress built an “equal-treatment principle” into the Act, requiring courts to “place arbitration agreements on an equal footing with other contracts.” … Here, California’s anti-drafter rule is as even-handed as contract rules come. It does not apply only to arbitration contracts. Nor does it apply (as the rule we rejected in Concepcion did) only a tad more broadly to “dispute-resolution contracts,” pertaining to both arbitration and litigation. Instead, the anti-drafter rule, as even the majority admits, applies to every conceivable type of contract—and treats each identically to all others. … So this case should come out Varela’s way even if the agreement is ambiguous. To repeat the simple logic applicable here: Under the FAA, state law controls the interpretation of arbitration agreements unless that law discriminates against arbitration; the anti-drafter default rule is subject to no such objection; the rule therefore compels this Court to hold that the agreement here authorizes class arbitration. That the majority thinks the contract, as so read, seriously disadvantages Lamps Plus, is of no moment (any more than if state law had instead construed the contract to produce adverse consequences for Varela). The FAA was enacted to protect against judicial hostility toward arbitration agreements. But the Act provides no warrant for courts to disregard neutral state law in service of ensuring that those agreements give defendants the best terms possible. Or said otherwise: Nothing in the FAA shields a contracting party, operating against the backdrop of impartial state law, from the consequences of its own drafting decisions. How, then, could the majority go so wrong? … The heart of the majority’s opinion lies in its cataloging of class arbitration’s many sins. In that respect, the opinion comes from the same place as (though goes a step beyond) this Court’s prior arbitration decisions. The opinion likewise has more than a little in common with this Court’s efforts to pare back class litigation. In this case, the result is to disregard the actual contract the parties signed. And to dismiss the neutral and commonplace default rule that would construe that contract against the drafting party. No matter what either requires, the majority will prohibit class arbitration. Does that approach remind you of anything? It should. Here (again) is Stolt-Nielsen as Concepcion described it: The panel exceeded its authority by “imposing class procedures based on policy judgments rather than the arbitration agreement itself or some background principle of contract law that would affect its interpretation.” Substitute “foreclosing” for “imposing” and that is what the Court today has done. It should instead—as the FAA contemplates—have left the parties’ agreement, as construed by state law, alone. https://www.supremecourt.gov/opinions/18pdf/17-988_n6io.pdf [internal citations inconsistently omitted throughout]
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Apr 24, 2019 17:45
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The FAA is a loving disaster, take 50.
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Apr 24, 2019 18:35
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Yeah. Haven't read that wall of text (yet), but it sounds like the issue is with the law, not the interpretation.
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Apr 24, 2019 18:46
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ilkhan posted:Yeah. Haven't read that wall of text (yet), but it sounds like the issue is with the law, not the interpretation. That’s only half right. The FAA is pretty bad, but it’s a statute from like the twenties. The real problem is how expansively the right wing Supreme Court has interpreted the FAA’s mandate to be. Read the Kagan dissent for a good explanation of how the right wing has interpreted the FAA to always give defendants exactly what they want all the time.
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Apr 24, 2019 18:50
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