4 ms·
If they did mandatory binding arbitration it would most likely work. Arbitration trumps everything else it seems.
by InfamousRece 2y ago
If they did mandatory binding arbitration it would most likely work. Arbitration trumps everything else it seems.
- rayiner 2y agoWhile the case was decided on seventh amendment grounds in the seventh amendment can be waived I don’t think the government can get around the separation of powers issues that are also in the background. You would need to fit the underlying conduct into something that can be called a public right. Maybe the government could require such waiver for use of a government run exchange.
- dctoedt 2y ago> separation of powers issues ... in the background Under the Exceptions and Regulations Clause in Article III, every federal court exercises its power at the sufferance of Congress (apart from cases under SCOTUS's original jurisdiction). Securities-fraud cases brought by the SEC are creatures of federal statute, not (non-existent) federal common law (cf. Erie), and so the Seventh Amendment jury right arguably doesn't apply. Under the E&R Clause, Congress could authoritatively say so, overruling past SCOTUS ipse dixit extensions of the Seventh Amendment to analogous cases.
- deleted 2y ago[deleted]
- conover 2y agoYup. If this isn't Congress' intent, all they have to do is pass a law saying so. "...when Congress addresses a question previously governed by a decision rested on federal common law the need for such an unusual exercise of lawmaking by federal courts disappears." - MILWAUKEE v. ILLINOIS via Wikipedia.