Supreme Court Upholds Workplace Arbitration Contracts • Hacker News Board

Re: Supreme Court Upholds Workplace Arbitration Contracts

#41

Post by gowld » Mon, May 21, 2018, 5:10 PM UTC

Bartweiss wrote: post #21

notyourday wrote: post #12

Earlier quoted context omitted.

Her dissent is "I wish I could write legislation from a bench and darn we don't have enough on our side". It is great that SCOTUS is starting to uphold the laws as they are on the books. Frankly, the idea that not legislators but the courts get to write the laws should be abhorrent. Courts need to stick to "is this law contradict other laws and hence is invalid" decisions. Want to change the law? Get congress and sen…

This seems like a particularly weird place to lay charges of activism. The majority decision claims "It is unlikely that Congress wished to confer a right to class or collective actions in §7, since those procedures were hardly known when the NLRA was adopted in 1935." That's either an activist position or an original intent position; it relies on comparing circumstances today to the circumstances Congress is presume…

You're reversing. Originalists says "this law's authors didn't anticipate modern conditions, so the law must not change under modern conditions"

Non-originalists say "this law's authors didn't anticipate modern conditions, so we must project their intent onto modern conditions"

Re: Supreme Court Upholds Workplace Arbitration Contracts

#42

Post by gowld » Mon, May 21, 2018, 5:11 PM UTC

Karishma1234 wrote: post #32

This is indeed a great verdict. It was 5-4 decision with all 5 conservative appointed judged voting in favour. Had Hillary won elections it would have been other way round.

Also might have gone the other way if the Congress hadn't unconstitutionally held a Court seat vacant in 2016.

Re: Supreme Court Upholds Workplace Arbitration Contracts

#43

Post by koolba » Mon, May 21, 2018, 5:11 PM UTC

sykh wrote: post #24

jeffdavis wrote: post #19

Earlier quoted context omitted.

+1 The supreme court is not a legislative body. It's fun when your side wins, but that's essentially the same as hoping for a benevolent dictator. The most important SCOTUS cases are constitutional ones limiting the legislative branch, not becoming a second legislature.

Will you believe this, that the court is not legislative in its actions, when the Janus ruling comes out? They are going to overrule decades of established labor laws.

Not GP but I sure will be. For the curious see [1] and [2] for more info about this case.

Public sector unions are nothing but trouble and every step toward their destruction is a good thing. The very idea of having organizations funded by tax dollars that subsequently influence their own regulation, pay rates, benefits, and pensions with those same tax dollars in exchange for votes from their members is ludicrous. It's the ultimate slush fund feedback loop and unless it's reigned in the rest of the tax base ends up holding the bag (or municipal bankruptcy!).

[1]: https://en.wikipedia.org/wiki/Janus_v_AFSCME

[2]: https://www.nbcnews.com/think/opinion/supreme-court-decision...

Re: Supreme Court Upholds Workplace Arbitration Contracts

#44

Post by rayiner » Mon, May 21, 2018, 5:12 PM UTC

mars4rp wrote: post #13

Someone1234 wrote: post #6

Time to pressure congress to change this. A lot of people see SCOTUS decisions and think the matter closed, but congress with the flick of a pen could completely ban arbitration for employee contracts. The employer/employee relationship is by its nature power imbalanced. If employers band together and all require arbitration (as they likely will via a standardised templated contract) employees cannot do much.

When was the last time Congress did something for the people against corporations?

That's a false dichotomy. Corporations are the basic units of the wealth-creation engine that gives Americans among the highest standards of living in the world, not to mention employs almost all of them. Doing what's good for the corporations is usually also what's good for people.

Re: Supreme Court Upholds Workplace Arbitration Contracts

#45

Post by Analemma_ » Mon, May 21, 2018, 5:12 PM UTC

Karishma1234 wrote: post #35

nathanaldensr wrote: post #3

This is really, really disappointing. Contracts are supposed to be fair for both sides. In isolation, meaning for one specific purchase or one specific job, they are. But what happens when every company and employer has this language in their contracts? What do they lose by including the language? They lose nothing!

The verdict seems very consistent with the existing laws while many believe it is unfair. But these are two separate things. Workers should petition their representatives to pass laws that will help them bring fairness and the courts will then have to look at the issue freshly. > But what happens when every company and employer has this language in their contracts? What do they lose by including the language? They lo…

> "not necessarily always in favour of the employer"

You're not really helping your case here if this is the strongest statement you can make in arbitration's favor – "you're not necessarily fucked!".

The New York Times ran a series about binding arbitration a while back, and a running theme was that arbitrators who repeatedly rule in favor of individuals quickly find themselves getting no more business, as you'd expect. Thus, the incentives of arbitrators are strongly skewed to favor employers (even if not at the individual level, then definitely at the ecosystem level via selection pressure) and I don't believe for a microsecond that their decisions are fair and reasonable.

Re: Supreme Court Upholds Workplace Arbitration Contracts

#46

Post by mikelinington » Mon, May 21, 2018, 5:12 PM UTC

gowld wrote: post #33

fhayde wrote: post #7

From https://www.supremecourt.gov/opinions/17pdf/16-285_q8l1.pdf > It is unlikely that Congress wished to confer a right to class or collective actions in §7, since those procedures were hardly known when the NLRA was adopted in 1935. Kind of funny they use this as justification considering everything else they've upheld that was adopted decades prior to this without knowledge of modern custom or technology. Convenie…

In these cases, the correct SCOTUS answer is "we can't decide". The proper response is some sort of forced decision in Congress -- In a criminal case, a higher court can "remand" -- order a lower court to review and decide. https://en.wikipedia.org/wiki/Remand_(court_procedure) We need the same for bitrotted legislation. In effect, we do -- When SCOTUS says "We don't think past Congress made a decision about this, so…

Neither your nor the GP's point seems relevant to the quoted text, which seems pulled specifically to paint the SCOTUS decision in a bad light. I read it as a direct response to the claim of the employees in this case, which is that the NLRA intended to displace parts of the Arbitrage Act. They are just saying that, among other reasons, this was not a common policy and unlikely to have been meant even in spirit.

They further explain their approach to resolving claimed conflict between two pieces of legislation:

> And in approaching a claimed conflict, we come armed with the “stron[g] presum[ption]” that repeals by implication are “disfavored” and that “Congress will specifically address” preexisting law when it wishes to suspend its normal operations in a later statute.

And specifically for the Arbitrage Act, because this is apparently a tactic that people keep trying:

> In many cases over many years, this Court has heard and rejected efforts to conjure conflicts between the Arbitration Act and other federal statutes. In fact, this Court has rejected every such effort to date […] Throughout, we have made clear that even a statute’s express provision for collective legal actions does not necessarily mean that it precludes “‘individual attempts at conciliation’” through arbitration […] And we’ve stressed that the absence of any specific statutory discussion of arbitration or class actions is an important and telling clue that Congress has not displaced the Arbitration Act.

So they're not saying "we can't decide," they're stating (I think): Congress can give employees more protection in this arena, but the laws as written are (1) not unconstitutional and (2) are not being interpreted incorrectly by lower courts.

Re: Supreme Court Upholds Workplace Arbitration Contracts

#47

Post by notyourday » Mon, May 21, 2018, 5:15 PM UTC

Bartweiss wrote: post #21

notyourday wrote: post #12

Earlier quoted context omitted.

Her dissent is "I wish I could write legislation from a bench and darn we don't have enough on our side". It is great that SCOTUS is starting to uphold the laws as they are on the books. Frankly, the idea that not legislators but the courts get to write the laws should be abhorrent. Courts need to stick to "is this law contradict other laws and hence is invalid" decisions. Want to change the law? Get congress and sen…

This seems like a particularly weird place to lay charges of activism. The majority decision claims "It is unlikely that Congress wished to confer a right to class or collective actions in §7, since those procedures were hardly known when the NLRA was adopted in 1935." That's either an activist position or an original intent position; it relies on comparing circumstances today to the circumstances Congress is presume…

Law says X. New condition Y shows up. The law does not magically become X' where X' accommodates for Y.

If you want X', then pass the law that changes X to X'.

Edit: I'm editing this as NH blocked me from replying:

> Sure, we agree on that. But Law X will interact with condition Y somehow, so the question is what property of X is preserved when addressing Y. This is a pretty fundamental debate between constitutional scholars, not just a lecture on how laws work.

I apologize if it came across that I was trying to lecture anyone on how the law works.

> Law X says "the right of the people to keep and bear arms shall not be infringed". Condition Y is the development of new types of arms after the amendment was ratified. Textualists and original meaning scholars say that the text of the law should be preserved - the right to keep arms should remain uninfringed. Original intent scholars say that the intended effect on the world should be preserved, and then we have to decide what that is - to keep flintlock weapons legal, to keep military-grade weapons of the day legal, or something else?

It is the "Freedom of the press" argument. Does it mean that only "press" as it existed at the time is covered? The answer, in my opinion, based on the current body of law is "No" because we do not have a law on a books that restricted the freedom of the press to something other than a totalitty of abstract idea of "press" and abstract idea of "freedom". If we did, and if that law was found to be constitutional, then the newer law would have trumped the old one.

This applies to the existing argument. I simply believe that Gorsuch and Thomas arguments have been misinterpreted. They are not some evil masterminds that are able to speak out of two corners of their mouth. They are originalists and they are applying a very simple "is there a law that has been passed which is more specific and was not found to be unconstitutional that affects the current issue? Yes => defer to new law. No=> defer to the original law"

Re: Supreme Court Upholds Workplace Arbitration Contracts

#48

Post by notyourday » Mon, May 21, 2018, 5:15 PM UTC

srj wrote: post #38

notyourday wrote: post #12

Earlier quoted context omitted.

Her dissent is "I wish I could write legislation from a bench and darn we don't have enough on our side". It is great that SCOTUS is starting to uphold the laws as they are on the books. Frankly, the idea that not legislators but the courts get to write the laws should be abhorrent. Courts need to stick to "is this law contradict other laws and hence is invalid" decisions. Want to change the law? Get congress and sen…

Except for Gorsuch, who is new, the same justices ruled to throw out the Voting Rights Act coverage formula because they felt the criteria set 40 years ago was too old. There's no blind interpretation of the law, justices make a decision anchored at least in part by their poltics and work backwards to justify it.

See above.

Re: Supreme Court Upholds Workplace Arbitration Contracts

#49

Post by notyourday » Mon, May 21, 2018, 5:16 PM UTC

camgunz wrote: post #25

notyourday wrote: post #12

Earlier quoted context omitted.

Her dissent is "I wish I could write legislation from a bench and darn we don't have enough on our side". It is great that SCOTUS is starting to uphold the laws as they are on the books. Frankly, the idea that not legislators but the courts get to write the laws should be abhorrent. Courts need to stick to "is this law contradict other laws and hence is invalid" decisions. Want to change the law? Get congress and sen…

If you read her dissent through to the end, she rightly points out that if the FAA were to hold over the NLRA then it would also hold over the Civil Rights Act, which is clearly not what Congress intended. See also her (well-cited) argument about specific vs. general legislation, as well the fact that the NLRA was written and enacted after the FAA. In fact, if you're on the side of "SCOTUS... starting to uplold the l…

No, the law did not address the new development. To address these developments, a new law should be passed.

Re: Supreme Court Upholds Workplace Arbitration Contracts

#50

Post by rayiner » Mon, May 21, 2018, 5:18 PM UTC

gefh wrote: post #15

fhayde wrote: post #7

From https://www.supremecourt.gov/opinions/17pdf/16-285_q8l1.pdf > It is unlikely that Congress wished to confer a right to class or collective actions in §7, since those procedures were hardly known when the NLRA was adopted in 1935. Kind of funny they use this as justification considering everything else they've upheld that was adopted decades prior to this without knowledge of modern custom or technology. Convenie…

Yeah, I can't see them overturning the 2nd amendment even though the same logic applies.

You're mixing up two different things: does the new thing fall within the old language, and would the drafters have used different language had they known about the new thing.

Is a semi-automatic rifle an "arm" as the term was understood in 1789? Yes, almost certainly, in the same way an aircraft carrier is a "ship" as the term was understood in 1789. If semi-automatic rifles had existed in 1789, would the framers still have used "arms" as they did? Maybe, maybe not, but that's irrelevant. We don't care about what they thought, just what they wrote.

Likewise, is a class action "concerted action" as the term was used in 1935? Probably not. Would the drafters of the NLRA have wanted class actions to be protected had those been common in 1935? Probably yes, but that's again irrelevant.