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In a 5-4 decision republicans are a protected class under the VRA and districts must be drawn to protect them. Bing bong, so simple.
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Jan 4, 2019 21:22
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Rigel posted:Remember that Wisconsin gerrymandering case where the SCOTUS punted? Kennedy didn't want to rule on the merits yet and also didn't want to close the door either so they found issues with standing and sent that case and others back down for lower courts to figure out standing. Well, two of the cases impacted was the NC and the MD gerrymandering cases which had been meandering their way through the appeals courts to decide the standing issue. It's a sign of exactly what Kennedy wanted to do: avoid going on record supportive of Gerrymandering since the punt was total bullshit and everyone knew it.
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Jan 5, 2019 00:24
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Let's remember that the status quo is "political gerrymandering is 100% A-OK even though it has the same effect as fabricating 30% of the ballots in an election". All you have to do is pretend it wasn't based on a protected class. It's hard to imagine a new case making a worse precedent.
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Jan 5, 2019 01:08
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ShadowHawk posted:Let's remember that the status quo is "political gerrymandering is 100% A-OK even though it has the same effect as fabricating 30% of the ballots in an election". All you have to do is pretend it wasn't based on a protected class. Yeah, they're already gerrymandering as hard as they can, a poo poo judgement now would probably give it a full-on green light for the next generation. Which would be horrendous but might also spur the Dems to do the same to at least create some kind of parity. I can't stand the idea of doing it because the other side does, but if the final arbiter of these things says it's OK, it's basically the only viable option left. It's worth mentioning, not as justification but because it's going to be an argument made by the GOP side that the Dems largely gerrymandered for decades which was no small part of their HoR majority for what, 30 years?
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Jan 5, 2019 03:37
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Corsair Pool Boy posted:Yeah, they're already gerrymandering as hard as they can, a poo poo judgement now would probably give it a full-on green light for the next generation. Which would be horrendous but might also spur the Dems to do the same to at least create some kind of parity. I can't stand the idea of doing it because the other side does, but if the final arbiter of these things says it's OK, it's basically the only viable option left. The House of Representatives was controlled by Democrats for nearly 75 years, from 1931 to 1997, with two brief periods of republican control (1947-1949 and 1953-1955). 
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Jan 5, 2019 03:49
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Kazak_Hstan posted:In a 5-4 decision republicans are a protected class under the VRA and districts must be drawn to protect them. the republicans absolutely do not want political affiliation to be protected
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Jan 5, 2019 03:49
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Corsair Pool Boy posted:Yeah, they're already gerrymandering as hard as they can, a poo poo judgement now would probably give it a full-on green light for the next generation. Which would be horrendous but might also spur the Dems to do the same to at least create some kind of parity. I can't stand the idea of doing it because the other side does, but if the final arbiter of these things says it's OK, it's basically the only viable option left. A SCOTUS decision giving the thumbs-up to gerrymandering has the potential of backfiring spectacularly against the GOP. The empty square states dont matter much for gerrymandering, and if the GOP gets completely destroyed in 2020, then the Dems will gently caress the GOP for a decade.
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Jan 5, 2019 03:51
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Gerrymandering is bad because it's anti-democratic, not because it currently benefits the GOP more than the Dems.
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Jan 5, 2019 07:03
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Main Paineframe posted:Gerrymandering is bad because it's anti-democratic, not because it currently benefits the GOP more than the Dems. Right, sure, but we can't afford to ignore bullshit like the GOP president earnestly threatening to declare martial law concerning a made-up border security panic. Gerrymandering is bad for democracy. However, the GOP is worse, and when compared to hard fixes like creating reeducation camps to introduce 40% of the US population to concepts like science or dignity, gerrymandering isn't that bad.
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Jan 5, 2019 16:58
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With the conservative Supreme Court seemingly poised to enshrine gerrymandering despite generally long odds of conservatives retaining power in 2020, perhaps it's one of those things that will just sort itself out.
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Jan 5, 2019 20:11
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Sodomy Hussein posted:With the conservative Supreme Court seemingly poised to enshrine gerrymandering despite generally long odds of conservatives retaining power in 2020, perhaps it's one of those things that will just sort itself out.
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Jan 5, 2019 20:21
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 Opinions! TIM SHOOP, WARDEN v. DANNY HILL Holding / Majority Opinion: The United States Court of Appeals for the Sixth Circuit held that respondent Danny Hill, who has been sentenced to death in Ohio, is entitled to habeas relief under 28 U. S. C. §2254(d)(1) because the decisions of the Ohio courts concluding that he is not intellectually disabled were contrary to Supreme Court precedent that was clearly established at the time in question. In reaching this decision, the Court of Appeals relied repeatedly and extensively on our decision in Moore v. Texas, 581 U. S. ___ (2017), which was not handed down until long after the state-court decisions. The Court of Appeals’ reliance on Moore was plainly improper under §2254(d)(1), and we therefore vacate that decision and remand so that Hill’s claim regarding intellectual disability can be evaluated based solely on holdings of this Court that were clearly established at the relevant time. … The [Sixth Circuit Court of Appeals] acknowledged that “[o]rdinarily, Supreme Court decisions that post-date a state court’s determination cannot be ‘clearly established law’ for the purposes of [the federal habeas statute],” but the court argued “that Moore’s holding regarding adaptive strengths [was] merely an application of what was clearly established by Atkins.” Id., at 487. … Although, as noted, the Court of Appeals ultimately disclaimed reliance on Moore, it explicitly asked the parties for supplemental briefing on how Moore “should be applied to this case.” Because the reasoning of the Court of Appeals leans so heavily on Moore, its decision must be vacated. On remand, the court should determine whether its conclusions can be sustained based strictly on legal rules that were clearly established in the decisions of this Court at the relevant time. Lineup: Per Curiam, no dissents. https://www.supremecourt.gov/opinions/18pdf/18-56_3d9g.pdf CITY OF ESCONDIDO, CALIFORNIA, ET AL. v. MARTY EMMONS Holding / Majority Opinion: The question in this qualified immunity case is whether two police officers violated clearly established law when they forcibly apprehended a man at the scene of a reported domestic violence incident. … In April 2013, Escondido police received a 911 call from Maggie Emmons about a domestic violence incident at her apartment....Officer Jake Houchin responded to the scene and eventually helped take a domestic violence report from Emmons about injuries caused by her husband. The officers arrested her husband. He was later released. A few weeks later, on May 27, 2013, at about 2:30 p.m., Escondido police received a 911 call about another possible domestic disturbance at Emmons’ apartment. … The officers knocked on the door of the apartment. No one answered. But a side window was open, and the officers spoke with Emmons through that window, attempting to convince her to open the door to the apartment so that they could conduct a welfare check. ... A few minutes later, a man opened the apartment door and came outside. At that point, Officer Craig was standing alone just outside the door. Officer Craig told the man not to close the door, but the man closed the door and tried to brush past Officer Craig. Officer Craig stopped the man, took him quickly to the ground, and handcuffed him...The man turned out to be Maggie Emmons’ father, Marty Emmons. Marty Emmons later sued Officer Craig and Sergeant Toth, among others, under Rev. Stat. §1979, 42 U. S. C. §1983….The District Court held that the officers had probable cause to arrest Marty Emmons for the misdemeanor offense. The Ninth Circuit did not disturb that finding, and there is no claim presently before us that the officers lacked probable cause to arrest Marty Emmons. The only claim before us is that the officers used excessive force in effectuating the arrest. … “Qualified immunity attaches when an official’s conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”...Under our cases, the clearly established right must be defined with specificity. … [T]he Court of Appeals defined the clearly established right at a high level of generality by saying only that the “right to be free of excessive force” was clearly established. With the right defined at that high level of generality, the Court of Appeals then denied qualified immunity to the officers and remanded the case for trial. 716 Fed. Appx., at 726. Under our precedents, the Court of Appeals’ formulation of the clearly established right was far too general. … The Court of Appeals failed to properly analyze whether clearly established law barred Officer Craig from stopping and taking down Marty Emmons in this manner as Emmons exited the apartment. Therefore, we remand the case for the Court of Appeals to conduct the analysis required by our precedents with respect to whether Officer Craig is entitled to qualified immunity. Lineup: Per Curiam, no dissents. https://www.supremecourt.gov/opinions/18pdf/17-1660_5ifl.pdf [internal citations inconsistently omitted throughout]
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Jan 7, 2019 17:34
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Honestly, it seems pretty bizarre that precedent isn’t retroactively applicable. Isn’t it supposed to be clarification of interpretation? If you’re rights are clarified too late, your just SoL?
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Jan 7, 2019 17:42
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Stickman posted:Honestly, it seems pretty bizarre that precedent isn’t retroactively applicable. Isn’t it supposed to be clarification of interpretation? If you’re rights are clarified too late, your just SoL? Retroactive applicability is always a pain in the rear end. The Supreme Court has usually used the following rules: 1. Criminal-law decisions apply to all cases not yet "final" on the day of the decision. 2. Except that a decision expanding the scope of an existing criminal statute can't be used against prior conduct. 3. "Substantive" constitutional rules apply retroactively to everyone. 4. "Procedural" constitutional rules apply retroactively to everyone. But wait, there's more! In the specific posture at hand - a federal court reviewing a death penalty handed down by a state court - the federal court is not allowed to disturb the conviction (which presumably otherwise comported with due process etc. etc.) unless there was a ruling contrary to clearly established constitutional law. This is basically Congress telling the federal courts to stop loving with state death sentences (through the Antiterrorism and Effective Death Penalty Act of 1996).
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Jan 7, 2019 18:22
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Yeek... so it normally would have fallen under the first category (and so would have applied to the appeal) except for the AEDPA specifically protecting the states' right to kill people? As always, thanks for sharing you legal knowledge!
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Jan 7, 2019 18:41
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Stickman posted:Yeek... so it normally would have fallen under the first category (and so would have applied to the appeal) except for the AEDPA specifically protecting the states' right to kill people? No. This isn't a direct appeal. The prisoner (Hill) appealed his case all the way he could in state courts directly, concluding with the Supreme Court of the United States declining to hear the case back in 1993. Then Hill tried several other roundabout approaches. The most recent contended that he could not be executed as mentally retarded. Hill lost, but that series of cases went up to the Ohio Supreme Court, which declined to hear an appeal from the Ohio Court of Appeals. Note that at this point he's not contesting guilt, just saying he can't be executed as mentally retarded, so it's a purely collateral attack now. Having exhausted state court remedies on that issue, Hill went into federal court in 2010 to claim that the Ohio courts misapplied clear law to deny his mental retardation (and thus no execution) claim. Stickman posted:Yeek... so it normally would have fallen under the first category (and so would have applied to the appeal) except for the AEDPA specifically protecting the states' right to kill people? The theory under the AEDPA was that there were too many federal court postconviction claims delaying the application of the death penalty sufficiently long that it really wasn't anything other than a theoretical penalty, and that federal courts were impermissibly second-guessing the state courts. This case shows that the concern was not unfounded; even after the AEDPA was passed, Hill hasn't been executed over 32 years after his conviction and more than 25 years after his direct appeals were denied. Stickman posted:As always, thanks for sharing you legal knowledge! You're welcome!
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Jan 7, 2019 20:31
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We're still in the early-term, unanimous opinions on issues not controversial to the Supreme Court. Opinions! CULBERTSON v. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY Holding / Majority Opinion: Federal law regulates the fees that attorneys may charge Social Security claimants for representation before the Social Security Administration and a reviewing court. See 42 U. S. C. §§406(a)–(b). The question in this case is whether the statutory scheme limits the aggregate amount of fees for both stages of representation to 25% of the claimant’s past-due benefits. Because §406(b) by its terms imposes a 25% cap on fees only for representation before a court, and §406(a) has separate caps on fees for representation before the agency, we hold that the statute does not impose a 25% cap on aggregate fees. … [T]he Social Security Act “discretely” addresses attorney’s fees for the administrative and judicial-review stages: “§406(a) governs fees for representation in administrative proceedings; §406(b) controls fees for representation in court.” … Section 406(a) is titled “Recognition of representatives; fees for representation before Commissioner” of Social Security. It includes two ways to determine fees for representation before the agency, depending on whether a prior fee agreement exists. … Section 406(b) is titled “Fees for representation before court.” Subsection (b)(1)(A) both limits these fees to no more than 25% of past-due benefits and allows the agency to withhold past-due benefits to pay these fees…. At issue is whether §406(b)’s 25% cap limits the aggregate fees awarded for representation before both the agency under §406(a) and the court under §406(b), or instead limits only the fee awarded for court representation under §406(b). … We “begi[n] with the language of the statute itself, and that is also where the inquiry should end, for the statute’s language is plain.”...Under §406(b), when a court “renders a judgment favorable to a claimant . . . who was represented before the court by an attorney,” the court may award “a reasonable fee for such representation, not in excess of 25 percent of the total of the past-due benefits to which the claimant is entitled by reason of such judgment.”... Both at the time of enactment and today, the adjective “such” means “[o]f the kind or degree already described or implied.”...Here, the only form of representation “already described” in §406(b) is “represent[ation] before the court by an attorney.” Accordingly, the 25% cap applies only to fees for representation before the court, not the agency. This interpretation is supported by “the structure of the statute and its other provisions.”...Section 406(a) addresses fees for representation “before the Commissioner,” whereas §406(b) addresses fees for representation in court. Because some claimants will prevail before the agency and have no need to bring a court action, it is unsurprising that the statute contemplates separate fees for each stage of representation. These subsections also calculate fees differently….Given this statutory structure, applying §406(b)’s 25% cap on court-stage fees to §406(a) agency-stage fees, or the aggregate of §§406(a) and (b) fees, would make little sense. Many claimants will never litigate in court, yet under the aggregate reading, agency fees would be capped at 25% based on a provision related exclusively to representation in court. ... Amicus Amy Weil agrees that “§406(a) and §406(b) provide separate avenues for an award of attorney’s fees for representation of a Social Security claimant,” but emphasizes that “these fees are certified for payment out of a single source: the 25% of past-due benefits withheld by the Commissioner.” … Amicus is quite right that presently the agency withholds a single pool of 25% of past-due benefits for direct payment of agency and court fees....And Amicus sensibly argues that if there is only a single 25% pool for direct payment of fees, Congress might not have intended aggregate fees higher than 25%....This argument is plausible, but the statutory text in fact provides for two pools of money for direct payment of fees. Any shortage of withheld benefits for direct payment of fees is thus due to agency policy. More fundamentally, the amount of past-due benefits that the agency can withhold for direct payment does not delimit the amount of fees that can be approved for representation before the agency or the court….Any concerns about a shortage of withheld benefits for direct payment and the consequences of such a shortage are best addressed to the agency, Congress, or the attorney’s good judgment. Because the 25% cap in §406(b)(1)(A) applies only to fees for court representation, and not to the aggregate fees awarded under §§406(a) and (b), the judgment of the United States Court of Appeals for the Eleventh Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. Lineup: Thomas, unanimous. https://www.supremecourt.gov/opinions/18pdf/17-773_4h25.pdf HENRY SCHEIN, INC., ET AL. v. ARCHER & WHITE SALES, INC. Holding / Majority Opinion: Under the Federal Arbitration Act, parties to a contract may agree that an arbitrator rather than a court will resolve disputes arising out of the contract. When a dispute arises, the parties sometimes may disagree not only about the merits of the dispute but also about the threshold arbitrability question—that is, whether their arbitration agreement applies to the particular dispute. Who decides that threshold arbitrability question? Under the Act and this Court’s cases, the question of who decides arbitrability is itself a question of contract. The Act allows parties to agree by contract that an arbitrator, rather than a court, will resolve threshold arbitrability questions as well as underlying merits disputes. Even when a contract delegates the arbitrability question to an arbitrator, some federal courts nonetheless will short-circuit the process and decide the arbitrability question themselves if the argument that the arbitration agreement applies to the particular dispute is “wholly groundless.” The question presented in this case is whether the “wholly groundless” exception is consistent with the Federal Arbitration Act. We conclude that it is not. The Act does not contain a “wholly groundless” exception, and we are not at liberty to rewrite the statute passed by Congress and signed by the President. When the parties’ contract delegates the arbitrability question to an arbitrator, the courts must respect the parties’ decision as embodied in the contract. We vacate the contrary judgment of the Court of Appeals. .... The relevant contract between the parties provided: “Disputes. This Agreement shall be governed by the laws of the State of North Carolina. Any dispute arising under or related to this Agreement (except for actions seeking injunctive relief and disputes related to trademarks, trade secrets, or other intellectual property of [Schein]), shall be resolved by binding arbitration in accordance with the arbitration rules of the American Arbitration Association [(AAA)]. The place of arbitration shall be in Charlotte, North Carolina.” … Archer and White objected, arguing that the dispute was not subject to arbitration because Archer and White’s complaint sought injunctive relief, at least in part….The question then became: Who decides whether the antitrust dispute is subject to arbitration? The rules of the American Arbitration Association provide that arbitrators have the power to resolve arbitrability questions. Schein contended that the contract’s express incorporation of the American Arbitration Association’s rules meant that an arbitrator—not the court—had to decide whether the arbitration agreement applied to this particular dispute. Archer and White responded that in cases where the defendant’s argument for arbitration is wholly groundless—as Archer and White argued was the case here—the District Court itself may resolve the threshold question of arbitrability. Relying on Fifth Circuit precedent, the District Court agreed with Archer and White about the existence of a “wholly groundless” exception, and ruled that Schein’s argument for arbitration was wholly groundless. The District Court therefore denied Schein’s motion to compel arbitration. The Fifth Circuit affirmed. … Under the [Federal Arbitration] Act, arbitration is a matter of contract, and courts must enforce arbitration contracts according to their terms. Applying the Act, we have held that parties may agree to have an arbitrator decide not only the merits of a particular dispute but also “‘gateway’ questions of ‘arbitrability,’ such as whether the parties have agreed to arbitrate or whether their agreement covers a particular controversy.” We have explained that an “agreement to arbitrate a gateway issue is simply an additional, antecedent agreement the party seeking arbitration asks the federal court to enforce, and the FAA operates on this additional arbitration agreement just as it does on any other.” Even when the parties’ contract delegates the threshold arbitrability question to an arbitrator, the Fifth Circuit and some other Courts of Appeals have determined that the court rather than an arbitrator should decide the threshold arbitrability question if, under the contract, the argument for arbitration is wholly groundless. … We conclude that the “wholly groundless” exception is inconsistent with the text of the Act and with our precedent….That conclusion follows not only from the text of the Act but also from precedent. We have held that a court may not “rule on the potential merits of the underlying” claim that is assigned by contract to an arbitrator, “even if it appears to the court to be frivolous….That AT&T Technologies principle applies with equal force to the threshold issue of arbitrability. Just as a court may not decide a merits question that the parties have delegated to an arbitrator, a court may not decide an arbitrability question that the parties have delegated to an arbitrator. … In an attempt to overcome the statutory text and this Court’s cases, Archer and White advances four main arguments. None is persuasive. First, Archer and White points to §§3 and 4 of the Federal Arbitration Act. Section 3 provides that a court must stay litigation “upon being satisfied that the issue” is “referable to arbitration” under the “agreement.” Section 4 says that a court, in response to a motion by an aggrieved party, must compel arbitration “in accordance with the terms of the agreement” when the court is “satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue.” Archer and White interprets those provisions to mean, in essence, that a court must always resolve questions of arbitrability and that an arbitrator never may do so. But that ship has sailed. This Court has consistently held that parties may delegate threshold arbitrability questions to the arbitrator, so long as the parties’ agreement does so by “clear and unmistakable” evidence. … Second, Archer and White cites §10 of the Act, which provides for back-end judicial review of an arbitrator’s decision if an arbitrator has “exceeded” his or her “powers.” §10(a)(4). According to Archer and White, if a court at the back end can say that the underlying issue was not arbitrable, the court at the front end should also be able to say that the underlying issue is not arbitrable. The dispositive answer to Archer and White’s §10 argument is that Congress designed the Act in a specific way, and it is not our proper role to redesign the statute. Archer and White’s §10 argument would mean, moreover, that courts presumably also should decide frivolous merits questions that have been delegated to an arbitrator. Yet we have already rejected that argument. … Third, Archer and White says that, as a practical and policy matter, it would be a waste of the parties’ time and money to send the arbitrability question to an arbitrator if the argument for arbitration is wholly groundless. In cases like this, as Archer and White sees it, the arbitrator will inevitably conclude that the dispute is not arbitrable and then send the case back to the district court. So why waste the time and money? The short answer is that the Act contains no “wholly groundless” exception, and we may not engraft our own exceptions onto the statutory text….In addition, contrary to Archer and White’s claim, it is doubtful that the “wholly groundless” exception would save time and money systemically even if it might do so in some individual cases. … Fourth, Archer and White asserts another policy argument: that the “wholly groundless” exception is necessary to deter frivolous motions to compel arbitration. Again, we may not rewrite the statute simply to accommodate that policy concern. In any event, Archer and White overstates the potential problem. Arbitrators can efficiently dispose of frivolous cases by quickly ruling that a claim is not in fact arbitrable. … We express no view about whether the contract at issue in this case in fact delegated the arbitrability question to an arbitrator. The Court of Appeals did not decide that issue....On remand, the Court of Appeals may address that issue in the first instance, as well as other arguments that Archer and White has properly preserved. The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. Lineup: Kavanaugh, unanimous. https://www.supremecourt.gov/opinions/18pdf/17-1272_7l48.pdf [internal citations inconsistently omitted throughout]
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Jan 8, 2019 16:33
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What’s the over/under on when RBG can be forklifted back onto the bench for an oral argument?
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Jan 8, 2019 16:57
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Drone Jett posted:What’s the over/under on when RBG can be forklifted back onto the bench for an oral argument? If she doesn't have a living will that says "keep me alive mechanically until January 2021", then I just don't even know.
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Jan 8, 2019 16:59
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The Federal Arbitration Act sounds like a mess
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Jan 8, 2019 16:59
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hobbesmaster posted:The Federal Arbitration Act sounds like a mess The history of the FAA judicially has been lower court judges saying "nah, the FAA couldn't possibly be meant to take *this* out of our control" and then SCOTUS saying "yes, it is." The tl;dr of the FAA is that once you sign the arbitration agreement you aren't getting your day in a court, period.
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Jan 8, 2019 17:11
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ulmont posted:The history of the FAA judicially has been lower court judges saying "nah, the FAA couldn't possibly be meant to take *this* out of our control" and then SCOTUS saying "yes, it is." The tl;dr of the FAA is that once you sign the arbitration agreement you aren't getting your day in a court, period. Yeah. Arbitration is a black hole in the heart of the judicial system, constantly sucking more and more legal rights away into its vortex.
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Jan 8, 2019 17:20
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ulmont posted:The history of the FAA judicially has been lower court judges saying "nah, the FAA couldn't possibly be meant to take *this* out of our control" and then SCOTUS saying "yes, it is." The tl;dr of the FAA is that once you sign the arbitration agreement you aren't getting your day in a court, period.
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Jan 8, 2019 18:02
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Hieronymous Alloy posted:Yeah. Arbitration is a black hole in the heart of the judicial system, constantly sucking more and more legal rights away into its vortex. A VW dealer would not sell me a car unless I agreed to arbitration even though I was paying cash.
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Jan 8, 2019 21:56
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Mr. Nice! posted:A VW dealer would not sell me a car unless I agreed to arbitration even though I was paying cash. What did you buy instead?
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Jan 8, 2019 22:12
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Subjunctive posted:What did you buy instead? I signed it because  at the thought of any car dealer not doing the exact same thing.
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Jan 8, 2019 22:45
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ulmont posted:The history of the FAA judicially has been lower court judges saying "nah, the FAA couldn't possibly be meant to take *this* out of our control" and then SCOTUS saying "yes, it is." The tl;dr of the FAA is that once you sign the arbitration agreement you aren't getting your day in a court, period. Arbitration should be outlawed in its entirety. I used to think that making an exception for business deals (not transactions) between equal parties would be ok but nah, burn the entire thing and let the courts do what they're supposed to because leaving an exception will just put us back in this spot eventually.
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Jan 8, 2019 23:45
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hobbesmaster posted:The Federal Arbitration Act sounds like a mess There's also another arbitration case awaiting decision, New Prime Inc. v. Oliveira, where a guy who might be exempt from the Arbitration Act is similarly claiming that an arbitrator shouldn't decide whether he's bound by arbitration.
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Jan 9, 2019 00:01
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It's always a fun fact that a company that loses in arbitration they forced you into can still go to the courts to get the award vacated. The first arbitration to be vacated in favor of the entity that mandated "*binding" arbitration should have nullified the entire system. Nothing is legitimate. * Binding for you, not for us!
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Jan 9, 2019 02:25
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Harik posted:It's always a fun fact that a company that loses in arbitration they forced you into can still go to the courts to get the award vacated. Trying to get Democrats to even listen to concerns about forced arbitration is like trying to explain calculus to a hamster. I would love to get some legislation that gets us back our access to the legal system.
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Jan 9, 2019 02:40
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Throatwarbler posted:Constitutional amendments in America seems to come and go in terms of popularity, somehow enough states agreed to ban the production of alcohol 100 years ago, It took a 150 years of mass alcholism that makes the current opiod crisis look miniscule in comparison. https://www.pastemagazine.com/articles/2018/08/the-1800s-when-americans-drank-whiskey-like-it-was.html quote:there’s one aspect of the road to Prohibition that is undeniable, and that’s the American appetite for alcohol. In short: We have oftentimes been a nation of drunks, but by today’s standards, average alcohol consumption in large parts of the 19th century U.S.A. was almost beyond rational belief. You will likely find it hard to accept as a fact just how much booze the average American was consuming in the first half of the 1800’s. The figures are almost cartoonishly high, so let’s consider how we got there first.
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Jan 9, 2019 02:56
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Evil Fluffy posted:Arbitration should be outlawed in its entirety. I used to think that making an exception for business deals (not transactions) between equal parties would be ok but nah, burn the entire thing and let the courts do what they're supposed to because leaving an exception will just put us back in this spot eventually. Arbitration between businesses who negotiated a deal is fine as a cheaper alternative to traditional litigation that does not burden our overworked courts. Binding arbitration clauses should not be allowed in consumer or employment contracts, or in any other contract that was drafted by one party without real negotiation (like many insurance policies sold to small and medium-sized businesses). The federal arbitration act is a disaster and people should talk about that more often.
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Jan 9, 2019 03:16
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Harik posted:It's always a fun fact that a company that loses in arbitration they forced you into can still go to the courts to get the award vacated. If I'm reading right, all of those arbitration rulings that got vacated were extremely consumer-hostile rulings in favor of the companies. Those are the kinds of rulings we want vacated.
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Jan 9, 2019 04:26
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Ogmius815 posted:Arbitration between businesses who negotiated a deal is fine as a cheaper alternative to traditional litigation that does not burden our overworked courts. It turns out often to not be cheaper, as litigators routinely provide for discovery similar to that allowed by the Federal Rules of Civil Procedure along with all the disputes and motion practice that leads to. Since arbitrators are commonly judges or litigators, and the lawyers working the arbitrations are also litigators, at the business arbitration level you can quickly end up reinventing the expensive litigation wheel.
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Jan 9, 2019 05:50
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How many cases are actually arbitrated vs the binding arbitration just scaring the plaintiff away from pursuing any action altogether? Or can we know?
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Jan 9, 2019 06:13
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It's weird that the solution to "overworked courts" is to create a parallel court system but lovely instead of just properly funding the courts we have to deal with their caseloads. And I don't see why we need a special carve-out from the justice system even for businesses who negotiated with each other as equals. If both businesses don't want to deal with the courts no one will stop them from asking their friend Steve to settle the problem. No one is going to pull them into a court room and make them sue each other. Arbitration clauses forcing someone into arbitration against their will seems bad, even if that someone is a business who agreed to the clause years ago before the dispute arose.
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Jan 9, 2019 08:39
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VitalSigns posted:It's weird that the solution to "overworked courts" is to create a parallel court system but lovely instead of just properly funding the courts we have to deal with their caseloads. Why are people being subjected to this illegitimate legal system they agreed to instead of having this legitimate one that other people and special interests decided on imposed on them, because freedom and fairness.
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Jan 9, 2019 13:44
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Because the Free Market made things more efficient of course.
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Jan 9, 2019 14:02
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The international inter-business form of arbitration, and other forms of dispute resolution, should definitely be permitted; there are harms there, but not nearly of the same scope (and not of the same form) as the sticky shrink wrapped contract type
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Jan 9, 2019 17:11
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I haven't seen any indication that people are upset about the FAA, though it does appear to be a dubiously applied policy that should generate some amount of popular discontent. Do people just not notice arbitration clauses and forced arbitration proceedings because they are generally locked out of the court system due to the high cost of entry or what?
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Jan 9, 2019 17:59
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