4 ms·

Congress set out to incentivize arbitration in America over long and expensive court cases. This is the system working as intended. It would be interesting to h

Congress set out to incentivize arbitration in America over long and expensive court cases. This is the system working as intended. It would be interesting to hear the non-cynical reason why they made this change. I already am aware of the cynical reason.

gsk22 4y ago
As someone who is very much not a lawyer -- isn't one of the major gripes about arbitration that it precludes class action suits? Certifying a class is a lot easier than thousands of individuals going through repetitive arbitrations. And of course, there is the benefit (for the corporation) that a large percentage of people will find arbitration too burdensome.
- fredophile 4y ago
  A major problem with arbitration is who pays for it. Usually the employer pays which means they pick the arbitrator. Arbitrators aren't stupid and know that if they rule against the employer too often the employer will hire someone else.
  - test6554 4y ago
    So this begs the obvious question... how does one become an arbitrator? ;-)
  - SamReidHughes 4y ago
    > Usually the employer pays which means they pick the arbitrator. Not true at all.
    - genocidicbunny 4y ago
      I seem to recall there have been instances where courts have basically said that if the employer requires arbitration and chooses the arbitrator, they also need to be the ones paying for it, otherwise the contract is far too one-sided towards the employer.
      - SamReidHughes 4y ago
        My impression of arbitration agreements is that they have a neutral selection process. But maybe some blatantly state the company picks whatever arbitrator they want, or there is a way to be sneaky about it. Do share if that's actually the case. Are there actual examples of cases wrongly decided by arbitration as a result of this phenomenon? Maybe they are all hidden under NDA.
        fredophile 4y ago
        [dead]
wahern 4y ago
> Congress set out to incentivize arbitration in America over long and expensive court cases. That couldn't possibly be the case as when the FAA was originally passed Congress' Commerce Clause powers were relatively narrow and it would have been inconceivable that the FAA could apply as broadly as SCOTUS now applies it. In order to get to where the FAA is now, SCOTUS had to jump through multiple dubious interpretive hoops, including some dubious textual hoops as the FAA on its face clearly speaks to the types of commerce (e.g. railroads, shipping, etc) that were within its regulatory ambit at the time of passage. By any reasonable interpretation the more general terms SCOTUS leverages would only apply to those areas traditionally understood as interstate commerce, but SCOTUS wasn't trying to be reasonable--they had a goal to minimize Federal case load, particularly related to class actions (which the conservatives detested for other reasons, as well), and set out to achieve it by hook or crook.
Aeolun 4y ago
Of course, they could have aimed for fast and cheap court cases instead, but that would prevent people with money from hammering down the working class.
- deleted 4y ago
  [deleted]

gsk22 4y ago

As someone who is very much not a lawyer -- isn't one of the major gripes about arbitration that it precludes class action suits? Certifying a class is a lot easier than thousands of individuals going through repetitive arbitrations. And of course, there is the benefit (for the corporation) that a large percentage of people will find arbitration too burdensome.

fredophile 4y ago
A major problem with arbitration is who pays for it. Usually the employer pays which means they pick the arbitrator. Arbitrators aren't stupid and know that if they rule against the employer too often the employer will hire someone else.
- test6554 4y ago
  So this begs the obvious question... how does one become an arbitrator? ;-)
- SamReidHughes 4y ago
  > Usually the employer pays which means they pick the arbitrator. Not true at all.
  - genocidicbunny 4y ago
    I seem to recall there have been instances where courts have basically said that if the employer requires arbitration and chooses the arbitrator, they also need to be the ones paying for it, otherwise the contract is far too one-sided towards the employer.
    - SamReidHughes 4y ago
      My impression of arbitration agreements is that they have a neutral selection process. But maybe some blatantly state the company picks whatever arbitrator they want, or there is a way to be sneaky about it. Do share if that's actually the case. Are there actual examples of cases wrongly decided by arbitration as a result of this phenomenon? Maybe they are all hidden under NDA.
      - fredophile 4y ago
        [dead]

wahern 4y ago

> Congress set out to incentivize arbitration in America over long and expensive court cases. That couldn't possibly be the case as when the FAA was originally passed Congress' Commerce Clause powers were relatively narrow and it would have been inconceivable that the FAA could apply as broadly as SCOTUS now applies it. In order to get to where the FAA is now, SCOTUS had to jump through multiple dubious interpretive hoops, including some dubious textual hoops as the FAA on its face clearly speaks to the types of commerce (e.g. railroads, shipping, etc) that were within its regulatory ambit at the time of passage. By any reasonable interpretation the more general terms SCOTUS leverages would only apply to those areas traditionally understood as interstate commerce, but SCOTUS wasn't trying to be reasonable--they had a goal to minimize Federal case load, particularly related to class actions (which the conservatives detested for other reasons, as well), and set out to achieve it by hook or crook.

Aeolun 4y ago

Of course, they could have aimed for fast and cheap court cases instead, but that would prevent people with money from hammering down the working class.

deleted 4y ago
[deleted]