Comments on: Supreme Court upholds workplace arbitration, and it’s Epic

By: Boblipton

Boblipton — Fri, 25 May 2018 17:49:25 +0000

In reply to SPO. It is if you’re a class-action attorney. Bob

By: SPO

SPO — Fri, 25 May 2018 12:49:58 +0000

In reply to Steve. But forcing people into the hands of class-action attorneys is moral?

By: Steve

Steve — Thu, 24 May 2018 00:59:03 +0000

In reply to Wrt. Wrt, because having been both job applicant and hiring manager at different times, in my experience it's easier for someone who needs work done to find multiple applicants than it is for someone who needs a paycheck to find multiple job offers. Anecdotal, sure, but my experience has been that employees and job applicants are disposable and replaceable in a way that jobs (and job offers) aren't. Part of it's that the unemployment numbers are artificially low because they exclude people who could look for work but aren't doing it at the moment, and part of it's that there's workarounds to make do with vacant positions (and the ever-increasing availability of automation making more and more of the labor pool a useless surplus).

By: CarLitGuy

CarLitGuy — Wed, 23 May 2018 22:42:42 +0000

Honestly, given the ruinous costs of (even successful) litigation on a defendant business, and the expense of re-litigating even similar contract language again and again before the courts, it in no way surprises me that “form” language and form contracts have arisen in an effort to control costs – otherwise, the marginal cost of potential litigation may swallow the productivity of even numerous employees. Same thing in many products we routinely enjoy, software being a fine example. Given the costs to produce, and the low return on most investments in software creation, it may well be that – absent those form contracts – the designer would have no reasonable economic basis to be willing to provide their product for sale.

The widespread adoption of near identical contracts is a symptom, its not the disease.

By: Steve is Right

Steve is Right — Wed, 23 May 2018 19:49:35 +0000

In reply to Wrt.

I’m not Steve, but since I think he’s right I will answer. Because there never is a comparable employer/position of employment without the provision, but all else equal. We can’t “tease out” the decision-making process of any individual vis-a-vis these clauses, because they are never the only decision point, or even the critical one.

At some point, especially when you need a job, you just have to take the bad with the good. Not because you “want” a clause where you can’t sue collectively, but because you can live with it, for the paycheck. However, if we can move society forward a little bit (e.g., fewer contracts of adhesion), maybe we’d have to swallow a little less bad, with the good.

By: mx

mx — Wed, 23 May 2018 19:05:48 +0000

In reply to Steve is Right.

I admire Walter’s consistency on this, which has extended to related matters such as disapproval of “take your gun to work” laws, but if “pro-liberty” extends to the government creating a scheme by which hundreds millions of people are signing away their constitutional rights in exchange for a job or necessary service, what’s being advanced isn’t libertarianism; it’s modern feudalism.

By: jdgalt

jdgalt — Wed, 23 May 2018 17:56:15 +0000

I hope the court will go on to vindicate individual freedom-of-contract by taking away the right of unions under the NLRA to extort political contributions from members who did not voluntarily join them. That’s a major First Amendment violation we have been stuck with since “the switch in time that saved nine.”

While we’re at it, let’s amend the Constitution to fix the size of the Court so that it will never be possible for any president to pack the court.

By: Steve is Right

Steve is Right — Wed, 23 May 2018 16:10:43 +0000

I thought Walter’s article was very thoughtful but one this one point — contracts of adhesion — even as a philosophical libertarian, I have to go with Steve. Contracts of adhesion (whether expressed in employment contracts or the more ubiquitous online “Terms and Conditions,” or, say, airlines’ Contracts of Carriage) have no moral basis in autonomy. The imbalance of power (I can’t exactly start my own airline or create my own amazon.com just in response to contract terms I don’t like) and “take it or leave it” approach would lead me, as a judge, to just line item terms out every time.

By: Wrt

Wrt — Wed, 23 May 2018 15:20:01 +0000

Steve – I might be inclined to see some merit in the cell phone scenario, but why in the (historically low unemployment) workplace do you feel people aren’t free to take or leave an employer’s terms, and take their talents elsewhere?

By: Allan

Allan — Wed, 23 May 2018 15:19:49 +0000

This was not a surprising decision, other than the fact that it was written by Justice Gorsuch and it clearly did not take into account the original intent of the authors of the NLRA, who most assuredly would have intended that the act would overrule the FAA. It is a bit hypocritical on his part. Only a bit, because it is possible that the authors of the FAA would have wanted this result. I am unclear on that matter, because I think that this was passed more as a measure to affect businesses with relatively equal sophistication and bargaining power than as allowing free-for-all rights to contract out of the right to go to court.

Mr. Olson writes: “millions of people ‘sign away their class action rights not because they are all hoodwinked or coerced, but because at some level they have rational grounds to recognize that’ those rights are mostly of value to the class action industry.”

I respectfully call BS. Those who sign away their rights don’t think about the class action industry. Instead, in effect, many people sign away their right to class actions in exchange for an implicit payment from the other side. To wit: purveyors of goods offer lower prices and employers offer higher salaries. The problem is that the consumers and employers are effectively forced to do so and we do not know how much they are paid.