Many important parts of your life – cell phones, bank loans, credit cards, virtually any online transaction, employment - are controlled by companies that require you to agree to contracts with “forced arbitration” clauses. You probably have no idea that you’ve agreed to one. It prevents you from going to court to resolve a dispute, instead forcing you into a private, rigged system designed and controlled by the companies themselves.
It wasn’t too long ago that unfair, one-sided forced arbitration clauses were routinely struck down by courts. Here’s a 2010 employment case, for example, where the Third Circuit Court of Appeals :
In our view, the pervasively one-sided nature of the arbitration agreement's terms demonstrates that the employer did not seek to use arbitration as a legitimate means for dispute resolution. Instead, the employer created a system that was designed to give it an unfair advantage through rules that impermissibly restricted employees' access to arbitration and that gave the employer an undue influence over the selection of the arbitrator.
But in 2011 the U.S. Supreme Court invoked an obscure law – the Federal Arbitration Act of 1926, nearly a century old and written to facilitate voluntary arbitration between businesses - and said it proved Congress intended some sort of “preference” for arbitration over constitutionally-protected legal rights. It found no problem with companies writing such clauses as unfairly as they liked, forcing consumers and employees with no bargaining power into agreeing to them, and placing at risk private enforcement of many laws where Congress expressly provided to right to go to court. Laws like the Civil Rights Acts of 1964 and 1991, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, the Equal Pay Act, the Uniformed 米兜彩票合法吗 Employment and Reemployment Rights Act, the Sherman Act, the Truth in Lending Act, and the civil provisions of the Racketeer Influenced and Corrupt Organizations Act. And hundreds of state laws, as well. And on and on. No court could do anything about it, and no state could fix it no matter how much they wanted to protect their own residents from illegal corporate behavior.
While some of the initial pro-arbitration decisions were close 5 to 4 votes, the pro-arbitration reasoning is now incredibly entrenched. So much so that a couple weeks ago, a unanimous SCOTUS backed Brett Kavanaugh's first written opinion, essentially that the 1926 law prevents a court from interfering with the workings of an arbitration clause even “if the court finds the arbitrability claim ‘wholly groundless.’” of Neil Gorsuch - was forced to acknowledge that they did. As Slate , “Together, Public Justice [which represented the plaintiff] and the Constitutional Accountability Center provided enough arcane evidence to satisfy Gorsuch” of this. But it took, among other things, something like six early 20th Century dictionaries to convince him.
As Slate notes, “The justice’s preoccupation with 1925 linguistics is so extreme that it spurred Justice Ruth Bader Ginsburg to write a brief concurrence noting that Congress can ‘design legislation to govern changing times and circumstances,’ using words whose meaning may ‘enlarge or contract [in] scope’ as society progresses.”
For all you legal eagles out there, here is specifically what RBG wrote in her short concurring opinion:
Congress, however, may design legislation to govern changing times and circumstances. See, e.g., Kimble v. Marvel Entertainment, LLC, 576 U. S. ___, ___ (2015) (slip op., at 14) (“Congress … intended [the Sherman Antitrust Act’s] reference to ‘restraint of trade’ to have ‘changing content,’ and authorized courts to oversee the term’s ‘dynamic potential.’” (quoting Business Electronics Corp. v. Sharp Electronics Corp., 485 U. S. 717, 731‒732 (1988))); SEC v. Zandford, 535 U. S. 813, 819 (2002) (In enacting the Securities Exchange Act, “Congress sought to substitute a philosophy of full disclosure for the philosophy of caveat emptor … Consequently, … the statute should be construed not technically and restrictively, but flexibly to effectuate its remedial purposes.” (internal quotation marks and paragraph break omitted)); Northwestern Bell Telephone Co., 492 U. S. 229, 243 (1989) (“The limits of the relationship and continuity concepts that combine to define a [Racketeer Influenced and Corrupt Organizations] pattern … cannot be fixed in advance with such clarity that it will always be apparent whether in a particular case a ‘pattern of racketeering activity’ exists. The development of these concepts must await future cases …”). As these illustrations suggest, sometimes, “[w]ords in statutes can enlarge or contract their scope as other changes, in law or in the world, require their application to new instances or make old applications anachronistic.” West v. Gibson, 527 U. S. 212, 218 (1999).
Congrats to Public Justice for winning this case. If they hadn’t, we’d know that things were even more corrupt than we thought at the U.S. Supreme Court. Now, if only the full Court would follow RBG’s sage advice and fix its earlier decisions. Ah, to dream.