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At this point, binding arbitration is a bankrupt concept. It's just "let's privatize the roads," except for the court system and except they're actually trying it.
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Apr 24, 2019 18:51
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Since you can't do class action arbitration doesn't that mean if thousands of employees demand arbitration it's got a good chance of royally loving the company since they'll be overwhelmed? IIRC it's currently being used as a weapon against a tech company, maybe Google, since the company faces a fine if it doesn't act promptly enough. Either way, arbitration should be outlawed in its entirety. No exception for business deals between equals because we've seen over the decades that that is being used to constantly expand this bullshit. Outlaw it full stop and if we need a lot of new judges well then I guess a Democratic-held Senate, House, and President would just have to appoint hundreds or maybe thousands of new judges at every level wouldn't they?
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Apr 24, 2019 23:39
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The basic problem with arbitration is that you have to pay half the costs of setting up the arbitration hearing -- paying the arbitrator ($1000 to $2000 a day), renting a meeting room, travel, etc. -- and if you lose, you might wind up footing the entire bill. So even though technically you might be able to bury the company in legal fees by having (in this case) 1,300 employees filing individually, every individual employee has to ask themselves whether they can eat thousands? tens of thousands? hundreds of thousands? of dollars before they win, and doubly so if they lose. It's a system that's fine for two giant companies throwing hundreds of millions of dollars at their lawyers to see if one of them can save a billion dollars from some vague wording in a contract, but for the little guy, it's just another big hurdle to getting help.
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Apr 24, 2019 23:56
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Arbitration at the employee level should absolutely be outlawed. This ruling just turned Right-to-Work up to 11 and ripped the nob off.
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Apr 25, 2019 01:23
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FronzelNeekburm posted:The basic problem with arbitration is that you have to pay half the costs of setting up the arbitration hearing -- paying the arbitrator ($1000 to $2000 a day), renting a meeting room, travel, etc. -- and if you lose, you might wind up footing the entire bill. So even though technically you might be able to bury the company in legal fees by having (in this case) 1,300 employees filing individually, every individual employee has to ask themselves whether they can eat thousands? tens of thousands? hundreds of thousands? of dollars before they win, and doubly so if they lose. Yeah it's really just another step solidifying justice as a commodity (which you just can't afford).
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Apr 25, 2019 01:31
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Evil Fluffy posted:Since you can't do class action arbitration doesn't that mean if thousands of employees demand arbitration it's got a good chance of royally loving the company since they'll be overwhelmed? IIRC it's currently being used as a weapon against a tech company, maybe Google, since the company faces a fine if it doesn't act promptly enough. And it's explicitly after Uber asked for a class action suit on behalf of its drivers to be moved to individual arbitration. The court agreed, then hordes of drivers began to request arbitration. I believe Uber is attempting to backpedal on it. edit: the Google thing you might be thinking of is how Google just ended mandatory arbitration for its employees: https://www.nytimes.com/2019/02/21/technology/google-forced-arbitration.html ShadowHawk fucked around with this message at 05:47 on Apr 25, 2019 |
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Apr 25, 2019 05:44
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Kagan’s dissent, Part II in particular, is blistering. And she’s absolutely right. The FAA is such absolute bullshit. Arbitration should absolutely be barred for consumers and employees at a minimum. And, as Kagan mentions as well, class action litigation has been utterly neutered by the right wing justices and that needs to be fixed, too.
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Apr 25, 2019 07:27
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ilkhan fucked around with this message at 19:43 on Apr 25, 2019 |
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Apr 25, 2019 17:24
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ilkhan posted:She's saying that the phrasing is ambiguous as to which issues it is referring to, and then references the relationship between you and your chair. But the relationship between you and the chair isn't ambiguous, it doesn't include your desk or your pen, just you and the chair. Nor, more directly, does it include your neighbors chair. It's not ambiguous at all. The category is the type of dispute, not the parties involved in the dispute. No, Kagan is not. She does not believe the phrasing is ambiguous; she believes it clearly covers class arbitration. Only in Part II does she go into "but even if you think it's ambiguous, Varela should still win."
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Apr 25, 2019 19:22
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ulmont posted:No, Kagan is not. She does not believe the phrasing is ambiguous; she believes it clearly covers class arbitration.
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Apr 25, 2019 19:43
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The plaintiffs won in the Michigan gerrymandering case after a trial at the district court level. It now goes up to the 6th circuit before the SCOTUS probably disappoints all of us with a reversal.
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Apr 25, 2019 20:31
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Sometimes I like to dream that in 2020, the Democrats keep the House, regain the Senate and White House, and follow the lead of AOC et al and start fixing poo poo. As such, how would you all fix the FAA? I don't think it needs to be totally thrown out. I see some good aspects to it, at least in the abstract. Certainly binding arbitration between giant corporations makes a ton of sense. Likewise, I shouldn't have to sue my phone company when I discover they've been charging me an extra $2.50 in tax for the past year. On the other hand, if I have a dispute with my employer, having them be the one who pays for and chooses the arbitrator (with the implied threat that if said arbitrator rules against them they'll get no more business) seems ripe for conflict of interest. Having no way to create a class arbitration or class-action lawsuit when an issue affects a class of consumers or employees is obviously bullshit. Being poo poo out of luck when a click-to-accept contract gives you an arbitrator who makes a clear error of fact is ridiculous. So, here's what I'd fix:
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Apr 25, 2019 20:53
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Your plan doesn't involve enough guillotines to fix the real problems arbitration is a symptom of.
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Apr 25, 2019 20:57
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Jethro posted:Sometimes I like to dream that in 2020, the Democrats keep the House, regain the Senate and White House, and follow the lead of AOC et al and start fixing poo poo. I think binding arbitration needs to be totally thrown out as a concept. Most consumer rights really should not be waivable, because (as we've seen) if a right is waivable then the vulnerable will be forced to systematically waive it through all the various forms of legal oppression (contracts of adhesion, dishonest lawyering, chicanery, oppressive fees, etc.) And when you get down to brass tacks, all arbitration is, in effect, is the forced waiver of various legal rights -- due process, trial by jury, impartial court, etc. -- that plaintiffs would otherwise have. The only context where arbitration makes any sense at all is where it basically functions as mediation because both parties are sophisticated enough, and have deep pockets enough, to fully litigate the case anyway regardless of the outcome of the arbitration. And in that context, the parties should just mediate then if that fails they should go to court. We shouldn't be privatizing the court system. Arbitration = bad.
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Apr 25, 2019 21:10
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The existence of binding contracts that require deference to an agreed upon third party isn't really a problem when the negotiating parties are roughly equal in terms of sophistication and resources. Just forbidding their use in consumer and employment law seems like an easy fix.
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Apr 25, 2019 21:27
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Dead Reckoning posted:The existence of binding contracts that require deference to an agreed upon third party isn't really a problem when the negotiating parties are roughly equal in terms of sophistication and resources. Just forbidding their use in consumer and employment law seems like an easy fix. This is my take, too. There would still be issues when the super large corps force it on like contractors or smaller pieces of their supply chain, but it would eliminate 95+% of the bullshit arbitration involves.
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Apr 25, 2019 21:36
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Dead Reckoning posted:The existence of binding contracts that require deference to an agreed upon third party isn't really a problem when the negotiating parties are roughly equal in terms of sophistication and resources. Just forbidding their use in consumer and employment law seems like an easy fix. Employment sure but there are probably consumer contexts where they’re appropriate. I would ban in the employment context completely and provide for class arbitration of consumer contracts where feasible, ban where not.
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Apr 25, 2019 21:37
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KIM JONG TRILL posted:This is my take, too. There would still be issues when the super large corps force it on like contractors or smaller pieces of their supply chain, but it would eliminate 95+% of the bullshit arbitration involves. This is actually a real problem that should be addressed also. Essentially binding and mandatory arbitration should only be allowed in negotiated contracts, not where one party drafted the contract and the other had to more or less take it or leave it. Believe it or not goons, that second description does apply to a LOT of commercial contracts.
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Apr 25, 2019 21:39
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Ogmius815 posted:This is actually a real problem that should be addressed also. Essentially binding and mandatory arbitration should only be allowed in negotiated contracts, not where one party drafted the contract and the other had to more or less take it or leave it. Believe it or not goons, that second description does apply to a LOT of commercial contracts. That's the thing for me; I'm not sure there's really such a thing as a fairly chosen, impartial, negotiated arbiter. We have a word for an impartial, fair arbiter: "court" (at least ideally, and look what a hash even real courts make of it). Admittedly I have *zero* experience with high end corporate law, but I just have a really hard time with the concept that picking a not-unfairly-biased arbiter is even possible. It just seems like a recipe for legalized bribery in even the best of circumstances. Maybe there's some set of circumstances where a negotiated arbitration clause is fair but I have a really hard time imagining precisely what those circumstances are in actuality. Hieronymous Alloy fucked around with this message at 21:54 on Apr 25, 2019 |
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Apr 25, 2019 21:49
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Hieronymous Alloy posted:That's the thing for me; I'm not sure there's really such a thing as a fairly chosen, impartial, negotiated arbiter. Basically everyone knows the arbitrator will be less fair (and certainly will have a less skilled staff) at the time the contract is signed though. When a contract is negotiated, that’s something the parties accept in exchange for the prospect of cheaper and quicker resolution of disputes. That’s a fine choice to make and often is rational for all parties. The problem arises where one party doesn’t really get to be involved in writing the contract.
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Apr 25, 2019 21:53
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I feel like the actual answer is just to properly fund and staff the justice system so there isn't a need for a private overflow system to try and reduce court workload.
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Apr 25, 2019 21:55
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vyelkin posted:I feel like the actual answer is just to properly fund and staff the justice system so there isn't a need for a private overflow system to try and reduce court workload. Yeah, if the concern is saving time and money, why not create a government-run arbitration service? It could even be funded with a direct corporate tax. E: For binding arbitration. Non-binding arbitration is obviously okay as a private industry, so long as it is totally non-binding. Stickman fucked around with this message at 22:27 on Apr 25, 2019 |
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Apr 25, 2019 21:57
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Doesn't sound like it'll make anyone rich
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Apr 25, 2019 22:10
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The ideal case for arbitration would be something like that Oracle/Google patent slapfight that was in the court system for years Salary arb for sports leagues also works, just because it would take forever in the courts Nissin Cup Nudist fucked around with this message at 22:17 on Apr 25, 2019 |
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Apr 25, 2019 22:14
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Stickman posted:Yeah, if the concern is saving time and money, why not create a government-run arbitration service? It could even be funded with a direct corporate tax. As I said before... Evil Fluffy posted:Either way, arbitration should be outlawed in its entirety. No exception for business deals between equals because we've seen over the decades that that is being used to constantly expand this bullshit. Outlaw it full stop and if we need a lot of new judges well then I guess a Democratic-held Senate, House, and President would just have to appoint hundreds or maybe thousands of new judges at every level wouldn't they? Ideal situation is arbitration is outlawed full stop and a fuckload of liberal judges get appointed at every level in response to the increased judicial workload. Nissin Cup Nudist posted:The ideal case for arbitration would be something like that Oracle/Google patent slapfight that was in the court system for years OJ's trial took a year or so too. Something taking forever in the courts isn't an excuse to use an inferior system.
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Apr 25, 2019 23:51
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There probably should be about twice as many District judges for hundreds of reasons anyway, to be frank.
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Apr 26, 2019 00:12
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Nissin Cup Nudist posted:The ideal case for arbitration would be something like that Oracle/Google patent slapfight that was in the court system for years It’s mostly a copyright fight (the patent claims just got thrown in to ensure a favorable appellate forum) and it’s still going! (Also the reason it’s still going amounts to a jury saying Oracle is wrong, the Federal Circuit making hosed up rulings to increase the scope of copyright and sending the case back for another trial, where a jury again said Oracle is wrong, back to CAFC a new bad rule and now it’s being appealed to SCOTUS.)
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Apr 26, 2019 00:26
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Ah, yes, less fair and competent arbitrators chosen by sophisticated, professional corporations, compared to (checks notes)...elected state district court judges in random lovely counties in lovely states. Good points all around.
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Apr 26, 2019 00:42
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Drone Jett posted:Ah, yes, less fair and competent arbitrators chosen by sophisticated, professional corporations, compared to (checks notes)...elected state district court judges in random lovely counties in lovely states. Good points all around. Judicial elections are lovely...no argument there... but most states don't select judges that way. Also the discussion seems to be about the federal courts, so this point makes even less sense overall.
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Apr 26, 2019 01:31
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Raldikuk posted:Judicial elections are lovely...no argument there... but most states don't select judges that way. Also the discussion seems to be about the federal courts, so this point makes even less sense overall. 1. You are incorrect. 21 states have normal elections for judges and another 17 have retention elections (keep this judge or not). 2. The FAA takes cases away from state judges to arbitration as well as taking them away from federal judges. https://www.americanbar.org/content/dam/aba/migrated/leadership/fact_sheet.authcheckdam.pdf
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Apr 26, 2019 01:45
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ulmont posted:1. You are incorrect. 21 states have normal elections for judges and another 17 have retention elections (keep this judge or not). Yes, if you add in retention elections you can squeak by the majority there; but that is choosing to keep them or not; not their actual selection. Most states select who initially will be a judge via appointment processes. That many states then allow the populace to vote to keep them or not seems a bit different than "elected state district court judges in random lovely counties in lovely states". And even with that, I would definitely prefer elected judges over arbitrators selected by corporations who only have their best interests in mind (which is only slightly different than them bribing legislatures to pick the peeps they want). It is true that the FAA allows for preemption of state law, but the discussion about expanding the # of judges was about the federal courts. And if there is a strong desire for the federal courts to hear cases where it is felt states will fall short could be put into a different law that kicked it to the courts instead. Why would it need to be arbitration to do that? Not that I am convinced that it even makes sense to kick an issue that could be handled in state courts to federal courts without letting state courts handle it first; and it seems that the states that try to fight against the FAA aren't the "lovely state" ones, though I suppose "lovely state" is very subjective.
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Apr 26, 2019 02:04
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Hieronymous Alloy posted:That's the thing for me; I'm not sure there's really such a thing as a fairly chosen, impartial, negotiated arbiter. ooh ooh I can answer the reason for this- it's international contracts where the forum battle would become insane and the uncertainty associated would drive commerce to a halt, or where some forums that could potentially be selected are totally unequipped for the subject of dispute. There's also trade secret/market pricing rationales, though those are more squiffy. Arbitration clauses still have issues in the sophisticated international corporate area, but some work is being done on those issues that might start to address them in like a decade or so. But it's way more reasonable/feasible in that context. Imagine, e.g., being a shipping company and having no guarantee that a loss of American and Chinese freight on a ship registered in Greece to your British holding company bound for, say, Libya, wouldn't wind up with a judgement issued out of a Libya court. Or China. Or America. Or Greece. Or all of the above simultaneously. International commerce would quickly grind to a halt. Actually this would have incredible environmental benefits...I'm onboard now. Discendo Vox fucked around with this message at 05:38 on Apr 26, 2019 |
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Apr 26, 2019 04:51
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Discendo Vox posted:ooh ooh I can answer the reason for this- it's international contracts where the forum battle would become insane and the uncertainty associated would drive commerce to a halt, or where some forums that could potentially be selected are totally unequipped for the subject of dispute. This is the correct answer. Non-US companies are scared shitless by the idea of American discovery rules and practices in litigation, and US companies are scared shitless by the idea of local (e.g.) Latin American courts, in each case with some justification.
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Apr 26, 2019 05:07
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ulmont posted:This is the correct answer. Non-US companies are scared shitless by the idea of American discovery rules and practices in litigation, and US companies are scared shitless by the idea of local (e.g.) Latin American courts, in each case with some justification. Speaking of which, I wonder if Steven Donziger is still running around trying to hang that $9.5 billion judgement on Chevron. Most of the courts in the western hemisphere have told him to gently caress off at this point 
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Apr 26, 2019 06:58
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imo the corporations lost the right to the "but but we need it sometimes, think about the money" justification for binding arbitration when they started abusing it and imposing it on powerless employees and individuals. I just straight up don't believe that if we meet them halfway they won't immediately find another wedge to do the same lovely things, those things are profitable and therefore they will do it regardless of what they say now. That was the original argument for arbitration when it was passed in the first place, and it didn't stop them from abusing it.
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Apr 26, 2019 16:36
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VitalSigns posted:imo the corporations lost the right to the "but but we need it sometimes, think about the money" justification for binding arbitration when they started abusing it and imposing it on powerless employees and individuals.
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Apr 26, 2019 16:55
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Dead Reckoning posted:That is not how any of this works. "Well, Tucker Carlson started dogwhistling white nationalism, so I guess it's time to pack it in on this whole 'freedom of the press' experiment. They're always going to find a way to use coded language." A society corrects excesses and abuses, it doesn't take away legal rights like toys from a misbehaving child. Arbitration isn't a legal right in the same sense that freedom of the press is, though. There's no constitutional right to arbitration, and in fact arbitration involves a waiver of both parties' constitutional rights. It's a legal right in the sense that statutes allow it, obviously, and there are certainly good arguments for allowing it in some situations, but your argument doesn't make much sense to me.
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Apr 26, 2019 17:11
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Dead Reckoning posted:That is not how any of this works. "Well, Tucker Carlson started dogwhistling white nationalism, so I guess it's time to pack it in on this whole 'freedom of the press' experiment. They're always going to find a way to use coded language." A society corrects excesses and abuses, it doesn't take away legal rights like toys from a misbehaving child. Arbitration isn't a fundamental right, it was a courtesy extended to corporations that turned out to be a bad idea. E: I mean what the gently caress is this argument, we impose regulations on corporations all the time because of a few bad actors, because the societal benefit of restraining them far outweighs the hurt feefees of the "good ones" or whatever VitalSigns fucked around with this message at 17:20 on Apr 26, 2019 |
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Apr 26, 2019 17:17
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Dead Reckoning posted:That is not how any of this works. "Well, Tucker Carlson started dogwhistling white nationalism, so I guess it's time to pack it in on this whole 'freedom of the press' experiment. They're always going to find a way to use coded language." A society corrects excesses and abuses, it doesn't take away legal rights like toys from a misbehaving child. Taking away legal "rights" granted by legislation, that are being abused and used in unanticipated ways, is a paradigmatic example of good governance. We're fortunate the the FAA is only a law and not part of the constitution, though I'm pessimistic that Congress has the will to fix the obvious problems, since Republicans are generally on board with helping companies oppress individuals, and Democrats largely just don't care.
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Apr 26, 2019 17:20
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Silver2195 posted:Arbitration isn't a legal right in the same sense that freedom of the press is, though. There's no constitutional right to arbitration, and in fact arbitration involves a waiver of both parties' constitutional rights. It's a legal right in the sense that statutes allow it, obviously, and there are certainly good arguments for allowing it in some situations, but your argument doesn't make much sense to me. He doesn't understand or care to learn why the law was enacted in the first place or why it's important.
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Apr 26, 2019 18:28
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