4 ms·

The Court, not Congress, favoured arbitration over court in consumer contracts. Arbitration, when passed, was designed for contract disputes between merchants,

by eadler 2y ago

The Court, not Congress, favoured arbitration over court in consumer contracts. Arbitration, when passed, was designed for contract disputes between merchants, not statutory claims or between entities of unequal bargaining power. In fact members of Congress expressly disavowed touching either consumer or employment contracts - and even went so far as to make that explicit with respect to employment.

wbl 2y ago
Then why did congress pass https://www.law.cornell.edu/uscode/text/9/2 https://www.law.cornell.edu/uscode/text/9/2 which doesn't exclude any of the things you claim were excluded?
- eadler 2y ago
  "but nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers ...." was specifically intended to exclude all employment contract. It was the Court, in Circuit City v. Adams, incorrectly, claimed that ejusdem generis applied here. Please see for further details: Sternlight, J. R. (2005). Creeping Mandatory Arbitration: Is It Just? Scholarly Works, 57(280), 1631–1676. pp 1631 Cain, R. M. (1988). Commercial Disputes and Compulsory Arbitration. The Business Lawyer, pp 65 Cohen, J. H., & Dayton, K. (1926). The New Federal Arbitration Law. Virginia Law Review, 12(4), 265–286. https://doi.org/10.2307/1065471 https://doi.org/10.2307/1065471 pp 265 Stone, K. V. W. (2018). Rustic Justice: Community and Coercion under the Federal Arbitration Act [Preprint]. LawArXiv. https://doi.org/10.31228/osf.io/6g7e3 https://doi.org/10.31228/osf.io/6g7e3 §IV.F pp 987-991 For all references: https://arbitrationinformation.org/docs/references/ https://arbitrationinformation.org/docs/references/
  - wbl 2y ago
    Congress could have said "shall apply to contracts of employment." Because they listed some specific then the general, the Court said that we don't read the general to expand beyond the specific examples much. Congress can of course pass a law if the court got it wrong to clarify the construction.
    - eadler 2y ago
      You're correctly understanding the mistake the court made. The principle does not normally apply in this context under ordinary rules of statutory interpretation. I even gave you a source from the author of the law itself. You are correct that congress can fix the issue. Due to deadlock and a lack of care they have not.
    - watwut 2y ago
      Supreme court using congress dysfunction to change the laws how they want is still supreme court being wrong and causing harm. It is congress fault they are gridlocked, it is supreme court who is actively doing something wrong.
  - leereeves 2y ago
    It's dishonest to use an ellipsis to change the meaning of a text. The full quote is: "nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce." That exception does not apply to all workers. In Circuit City Stores, Inc. v. Adams (2001), the SC found that it only applies to transportation workers. https://en.wikipedia.org/wiki/Circuit_City_Stores,_Inc._v._Adams https://en.wikipedia.org/wiki/Circuit_City_Stores,_Inc._v._A...
    - eadler 2y ago
      I used the ellipse for emphasis rather than dishonesty. The full quote was above. (If HN supported formatting I'd perhaps have used bold instead of ellipse+elision.) And yes. I read the full text of Circuit City including every footnote. I've also read multiple analysis of the opinion by different scholars. I've also read multiple articles by the original author of the text as well as transcripts of the Congressional debate at the time it passed. The reasoning for specifically mentioning transportation workers is that there are separate statues for arbitration or worker-contract for those workers and Congress did not want to conflict. Circuit City was an error.
      - leereeves 2y ago
        If the act was intended to exclude all employment contracts, why did it not simply say that? It could have simply said "nothing herein contained shall apply to contracts of employment". Instead it lists specific kinds of contracts it shall not apply to. And the explanation that "Congress did not want to conflict" doesn't make sense. Excluding all workers from this act would ensure that this act does not conflict, not mentioning them does not ensure that.
        eadler 2y ago
        Bear in mind this was written in 1928 in a very different legal context. In particular it was written before the Erie double-reversal [0]. Personally, I think it was poorly drafted by modern standards. Today, this particular exclusion would be something like adding an additional paragraph with text that says "nothing herein shall affect any provision of any other statue" (please excuse my imprecision) Julius Henry Cohen, one of the key authors of the law, wrote the following (ellipse and elision for emphasis. Please see the full source for full text): > ... which commands an unusually widespread support in the business world because the reform is directed primarily toward settlement of commercial disputes... > A written provision for arbitration contained in any contract which involves maritime transactions ... or interstate commerce as generally defined, is made "valid, enforceable and irrevocable," > It must be read in the light of the situation which it was devised to correct and of the history of arbitration anid of similar statutes in the recent past. > The evils which arbitration is intended to correct are three in number: (1) The long delay usuallv incident to a proceeding at law, in equity or in admiralty, especially in recent years in centers of commercial activity, where there has arisen great congestion of the court calendars. nce. (2) The expense of litigation. (3) The failure, through litigation, to reach a decision regarded as just when measured by the standards of the business world. > Arbitration under the Federal and similar statutes is simply a new procedural remedy, particularly adapted to the settlement of commercial dispute > 'Information collected by the Department of Commerce over the past several years' hie said, 'clearly showed that the substantial element of the American business public is overwhelmingly in favor of arbitration in the settlement of *commercial disputes* in both domestic and foreign trade While I don't quote it here, there is also interesting rules around jurisdictions which the law was trying to dance around. Please also see [2] 58 See Leslie, supranote 57, at 309 ("Congress did not intend the FAA to facilitate firms imposing arbitration clauses on consumers through contracts of adhesion.... For example, in colloquy, when senators raised the issue of contracts of adhesion, the bill's supporters testified that the FAA would not apply to such situations."); id. at 310-11 ("During the earliest hearings for the FAA, concerns were expressed that the Act could cover employment . .. . The Act's text was amended [to exclude] 'contracts of employment of ... any ... class of workers engaged in foreign or interstate commerce.' . . . [T]he amendment appeased labor interests, who removed their opposition to the bill." (footnote omitted) (quoting 9 U.S.C. § 1 (2012))); Margaret L. Moses, Statutory Misconstruction: How the Supreme Court Created a FederalArbitrationLaw Never Enacted by Congress, 34 FLA. ST. U. L. REv. 99, 147 (2006) ("[N]o one in 1925-not the drafters, the Secretary of Commerce, organ ized labor, nor members of Congress-believed that the FAA applied to employment contracts."). [0] https://www.law.cornell.edu/wex/erie_doctrine https://www.law.cornell.edu/wex/erie_doctrine [1] Cohen, J. H., & Dayton, K. (1926). The New Federal Arbitration Law. Virginia Law Review, 12(4), 265–286. https://doi.org/10.2307/1065471 https://doi.org/10.2307/1065471 pp 265 [2] Fitzpatrick, B. T. (2017). Justice Scalia and Class Actions. Notre Dame Law Review, 92, 1977. https://scholarship.law.vanderbilt.edu/faculty-publications/586 https://scholarship.law.vanderbilt.edu/faculty-publications/... pp 1986 note 58 (via citation)

by eadler 2y ago

wbl 2y ago

Then why did congress pass https://www.law.cornell.edu/uscode/text/9/2 https://www.law.cornell.edu/uscode/text/9/2 which doesn't exclude any of the things you claim were excluded?

eadler 2y ago
"but nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers ...." was specifically intended to exclude all employment contract. It was the Court, in Circuit City v. Adams, incorrectly, claimed that ejusdem generis applied here. Please see for further details: Sternlight, J. R. (2005). Creeping Mandatory Arbitration: Is It Just? Scholarly Works, 57(280), 1631–1676. pp 1631 Cain, R. M. (1988). Commercial Disputes and Compulsory Arbitration. The Business Lawyer, pp 65 Cohen, J. H., & Dayton, K. (1926). The New Federal Arbitration Law. Virginia Law Review, 12(4), 265–286. https://doi.org/10.2307/1065471 https://doi.org/10.2307/1065471 pp 265 Stone, K. V. W. (2018). Rustic Justice: Community and Coercion under the Federal Arbitration Act [Preprint]. LawArXiv. https://doi.org/10.31228/osf.io/6g7e3 https://doi.org/10.31228/osf.io/6g7e3 §IV.F pp 987-991 For all references: https://arbitrationinformation.org/docs/references/ https://arbitrationinformation.org/docs/references/
- wbl 2y ago
  Congress could have said "shall apply to contracts of employment." Because they listed some specific then the general, the Court said that we don't read the general to expand beyond the specific examples much. Congress can of course pass a law if the court got it wrong to clarify the construction.
  - eadler 2y ago
    You're correctly understanding the mistake the court made. The principle does not normally apply in this context under ordinary rules of statutory interpretation. I even gave you a source from the author of the law itself. You are correct that congress can fix the issue. Due to deadlock and a lack of care they have not.
  - watwut 2y ago
    Supreme court using congress dysfunction to change the laws how they want is still supreme court being wrong and causing harm. It is congress fault they are gridlocked, it is supreme court who is actively doing something wrong.
- leereeves 2y ago
  It's dishonest to use an ellipsis to change the meaning of a text. The full quote is: "nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce." That exception does not apply to all workers. In Circuit City Stores, Inc. v. Adams (2001), the SC found that it only applies to transportation workers. https://en.wikipedia.org/wiki/Circuit_City_Stores,_Inc._v._Adams https://en.wikipedia.org/wiki/Circuit_City_Stores,_Inc._v._A...
  - eadler 2y ago
    I used the ellipse for emphasis rather than dishonesty. The full quote was above. (If HN supported formatting I'd perhaps have used bold instead of ellipse+elision.) And yes. I read the full text of Circuit City including every footnote. I've also read multiple analysis of the opinion by different scholars. I've also read multiple articles by the original author of the text as well as transcripts of the Congressional debate at the time it passed. The reasoning for specifically mentioning transportation workers is that there are separate statues for arbitration or worker-contract for those workers and Congress did not want to conflict. Circuit City was an error.
    - leereeves 2y ago
      If the act was intended to exclude all employment contracts, why did it not simply say that? It could have simply said "nothing herein contained shall apply to contracts of employment". Instead it lists specific kinds of contracts it shall not apply to. And the explanation that "Congress did not want to conflict" doesn't make sense. Excluding all workers from this act would ensure that this act does not conflict, not mentioning them does not ensure that.
      - eadler 2y ago
        Bear in mind this was written in 1928 in a very different legal context. In particular it was written before the Erie double-reversal [0]. Personally, I think it was poorly drafted by modern standards. Today, this particular exclusion would be something like adding an additional paragraph with text that says "nothing herein shall affect any provision of any other statue" (please excuse my imprecision) Julius Henry Cohen, one of the key authors of the law, wrote the following (ellipse and elision for emphasis. Please see the full source for full text): > ... which commands an unusually widespread support in the business world because the reform is directed primarily toward settlement of commercial disputes... > A written provision for arbitration contained in any contract which involves maritime transactions ... or interstate commerce as generally defined, is made "valid, enforceable and irrevocable," > It must be read in the light of the situation which it was devised to correct and of the history of arbitration anid of similar statutes in the recent past. > The evils which arbitration is intended to correct are three in number: (1) The long delay usuallv incident to a proceeding at law, in equity or in admiralty, especially in recent years in centers of commercial activity, where there has arisen great congestion of the court calendars. nce. (2) The expense of litigation. (3) The failure, through litigation, to reach a decision regarded as just when measured by the standards of the business world. > Arbitration under the Federal and similar statutes is simply a new procedural remedy, particularly adapted to the settlement of commercial dispute > 'Information collected by the Department of Commerce over the past several years' hie said, 'clearly showed that the substantial element of the American business public is overwhelmingly in favor of arbitration in the settlement of *commercial disputes* in both domestic and foreign trade While I don't quote it here, there is also interesting rules around jurisdictions which the law was trying to dance around. Please also see [2] 58 See Leslie, supranote 57, at 309 ("Congress did not intend the FAA to facilitate firms imposing arbitration clauses on consumers through contracts of adhesion.... For example, in colloquy, when senators raised the issue of contracts of adhesion, the bill's supporters testified that the FAA would not apply to such situations."); id. at 310-11 ("During the earliest hearings for the FAA, concerns were expressed that the Act could cover employment . .. . The Act's text was amended [to exclude] 'contracts of employment of ... any ... class of workers engaged in foreign or interstate commerce.' . . . [T]he amendment appeased labor interests, who removed their opposition to the bill." (footnote omitted) (quoting 9 U.S.C. § 1 (2012))); Margaret L. Moses, Statutory Misconstruction: How the Supreme Court Created a FederalArbitrationLaw Never Enacted by Congress, 34 FLA. ST. U. L. REv. 99, 147 (2006) ("[N]o one in 1925-not the drafters, the Secretary of Commerce, organ ized labor, nor members of Congress-believed that the FAA applied to employment contracts."). [0] https://www.law.cornell.edu/wex/erie_doctrine https://www.law.cornell.edu/wex/erie_doctrine [1] Cohen, J. H., & Dayton, K. (1926). The New Federal Arbitration Law. Virginia Law Review, 12(4), 265–286. https://doi.org/10.2307/1065471 https://doi.org/10.2307/1065471 pp 265 [2] Fitzpatrick, B. T. (2017). Justice Scalia and Class Actions. Notre Dame Law Review, 92, 1977. https://scholarship.law.vanderbilt.edu/faculty-publications/586 https://scholarship.law.vanderbilt.edu/faculty-publications/... pp 1986 note 58 (via citation)