FREE MARKET JUSTICE

There's not much I'd like to do less than to start writing up a Supreme Court case on a weekly basis. Two weeks ago the Court dropped Berghuis v. Thompkins on us, quietly ruling that Miranda rights must be positively invoked to protect arrestees from making incriminating statements. That was my Supreme Court fix for the first half of the year. But now, with absolutely no attention whatsoever from the media, the Court has made another incredibly tone-deaf (and 5-4) decision in favor of, well, not you.

Despite all of the condemnations of corruption and dedication to the moneyed interests among our elected leaders, the 5-vote conservative (ahem, "strict constructionist") block on the current Court is without a doubt the most reliable servant of Corporate America in our Federal government. Citizens United v. FEC made it clear several months ago that "public interest" was a figment of popular delusions in the opinions of Alito, Scalia, Clarence "What Anton Said!" Thomas, Roberts, and the "moderate" Anthony Kennedy. They live in a sterile fantasy world in which corporate rights and individual rights counterbalance one another, as though the two opposing sides are equally powerful.

Has anyone heard of Rent-a-Center v. Jackson? Anyone? I didn't think so. Let's take a brief look at this masterpiece of Bush-era conservative thinking, this window into Anton Scalia's mind.

The facts of the case are not fundamentally important. Mr. Jackson sued his former employer, Rent-a-Center, for discrimination on the basis of race. What is relevant is that as a condition of his employment Jackson signed an arbitration agreement at the time of hire, as do all Rent-a-Center employees. The agreement stipulates that charges against the employer are decided by an arbitrator – in short, the employees essentially surrender their right to pursue claims of discrimination, harassment, etc. in state or Federal courts. You know, just the basic "Sign here to waive certain constitutional rights" paperwork.

There's nothing illegal about such an agreement. But under the Federal Arbitration Act, employees can still ask a Federal court to rule on the fairness of their arbitration agreements themselves. In other words, "I was forced to sign this in order to get the job" is not a valid argument, but employees could petition the Federal courts to invalidate agreements that are grossly unfair, including those that charge punitive fees, mandate arbitration hearings in distant, remote locations, or allow employers to choose an arbitrator that is clearly a kangaroo court paid handsomely to rule in the Boss's favor.

Sounds reasonable, right? Your employer gets to screw you by forcing you to sign away rights as a condition of employment but at least the law throws Joe Public a bone and lets him use the courts to ensure that he receives somewhat-kinda-slightly fair privatized justice. Just about everyone can agree about that. Everyone except America's employers and five important people in Washington.

The Scalia-authored opinion rules that is legal for arbitration agreements to stipulate that challenges to the fairness or legality of the arbitration process must be decided in arbitration. So if your boss chooses Dewey, Fuckem and Howe as the arbitrator for your claim – and you happen to notice that DFH has a flawless 100% record of siding with the employer – your challenge to the fairness of the arbitration process is heard…by the arbitrator in question. Scalia's logic, as usual, is something along the lines of "Well no one puts a gun to your head and forces you to sign the agreement." Good point, Anton. We'll just move on to one of the dozens of other jobs we have waiting for us.

Aside from the very troubling idea that employers can exploit the power imbalance inherent in employment to force their workers to waive their right to access the courts, this decision waves a bright green light in front of corporate America, practically begging them to divert their employees into the privatized pseudo justice system of for-profit arbitration. Even better, it lets them know that they can feel free to establish their own phony arbitrator or patronize an existing one with a reputation for delivering in exchange for its fee. Without access to the courts to challenge the fairness of the process, the arbitration doesn't even have to put up the pretense of fairness or impartiality. They can walk into the meeting with a giant flashing sign reading "YOU LOSE" and there's nothing you can do about it now as long as the agreement is worded to redirect all of your legal challenges to the arbitrator.

So goodbye Federal Arbitration Act. Striking down laws isn't activist when right-wing sycophants do it. Activism or not, any decision that whittles away at the few assets individuals have to protect themselves in the course of their employment is A-OK with Anton and the boys.

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23 Responses to “FREE MARKET JUSTICE”

  1. J. Dryden Says:

    A shameful confession: I'll always have a sneaking affection for Scalia–though I wish him off the court and, if possible, off the planet–simply for the fact that the man doesn't really pretend to be anything other than what he is. Like Pat Buchanan, he is a full-throated, "va fan 'n cul" reactionary, loudly defiant in the face of all comers, all compromise, and often all logic. Would that the left had such people on its side. I loves me some Breyer and some Ginsburg, but there's no question as to who the 'star' of the court has been the past decade or so. Also, the man can write–his decisions/dissents are often loony, but they're impeccably composed, and I appreciate that. (Esp. his blistering dissents, which are *just* this side of John Doe's journal in 'Se7en.')

    That said, there's no question that when we look back at the Bush era and bite our knuckles in frustrated anguish, we need to remember not only that the "strict constructionist" claim was revealed to be utter bullshit by the "OK, we're making him president, but only this guy, this time–no precedent is set–no takebacks" decision in Bush v. Gore, but that the Court as a result of those eight long years is gonna be hard-core go-fuck-yourselves for the next few, oh, forever, really. Alito and Roberts are going nowhere. Scalia and his bestest buddy ever are glued to their seats. Obama can put Bill Ayres and Tim Robbins on the bench, and it won't outweigh the lockstep that usually manages to drag Kennedy along for the ride.

    Get used, in short, to a level of equity in jurisprudence last seen during the Gilded Age, when sweatshops were just "an honest day's wage for an honest day's work" and the Triangle Shirtwaist Fire was written off as a bad day at the office.

  2. Rosalux Says:

    1. Yea, it's an astonishing legal fiction, isn't it? That an employer who signs an arbitration clause both READS the legalese and UNDERSTANDS fully the rights that he is signing away. It's outrageous and guarantees that workers will have no legal recourse in many cases. How's that for due process?

    2. What you may NOT know is that everyone on this blog has unwittingly signed an arbitration clause at least once in their lives: when you last signed a credit card membership agreement. You waived the right to join class actions and agreed to arbitration, where, yes, plaintiffs lose overwhelmingly. Judges in many states have held these clauses "unconscionable" and ban them; in other states they're permitted. So, best of luck next time you have a dispute with your credit card company!

    3. The five conservative justices are not, I think, equally rotten. Scalia has a mean independent streak. Kennedy is a mixed bag. Thomas is simply an mindless troglodyte. It's really Roberts and Alito that, as far as I know, will always vote for corporate interest. They're tied for the ignominious prize of my "Most Loathed Justice."

  3. Maren Says:

    I was about to say what Rosalux did, that mandatory arbitration agreements are everywhere. When I used to work in personal injury, we didn't generally take Kaiser cases because their contracts state that any medical malpractice claim must be arbitrated — and they get to pick the arbitrator. Guess what the qualifications for being a good arbitrator are in the eyes of Kaiser's legal department?

    I gained a grudging respect for Scalia after reading enough of his opinions, even if his logic often took me to places I didn't want to go and he refuses to acknowledge that he starts from premises just like everyone else, not God-given fact. Thomas's logic is completely incoherent; Kennedy has his moments; and the other two engage in more "judicial activism" than they complain about. It's not strict constructionism that worries me — it's the fact that no one other than Scalia even applies it properly in the service of their own ideals.

  4. HoosierPoli Says:

    I must be reading the Constitution wrong, because I thought access to the civil court system was a Constitutional right, and I'm pretty sure no contractual clause is valid which would invalidate a Constitutional right (for example, you can't sell yourself into slavery).

  5. Shane Says:

    I don't have anything particularly astute to add today, but …"Dewey, Fuckem and Howe"….superb.

  6. ladiesbane Says:

    Employment contracts seem like a different kettle of fish. How can a court uphold an unfair contract? An individual cannot sign a document agreeing to allow the employer to engage in an illegal act, any more than he could write a Get Out of Jail Free card. I can't give permission for the law to be broken; it's not my law, it's the law of the land.

    So I think there must be a technical failure, and I suspect it's the biased arbitration companies. Most people can't afford counsel that rivals a flock of corporate attorneys. I admit, California is very favorable to workers and consumers in these situations, but it's still no cakewalk.

    http://www.businessweek.com/magazine/content/08_24/b4088072611398_page_2.htm

  7. displaced Capitalist Says:

    And the Prop 9 opposition wants to appeal a gay rights issue to the Supreme Court? Are they fakking nuts!?

  8. John Says:

    Keep in mind that conservatives are also the kind of people that believe that the answer to skyrocketing medical costs in this country is the catch-all 'tort refrm', which basically means removing the ability to sue a medical professional for seriously fucking up your life with a mistake.

    While I certainly agree that one should not be able to request, say, plastic surgery, have the surgery completed successfully and with no complications, and then years later sue their doctor because they changed their mind after the fact; that is not the whole of what the intended legal changes from the right are.

    And so it's no different here. Let the corporations offer you a choice: starve, or sign away all your legal rights with regards to our employment contract. Couple this with the constant right-wing mantra of eliminating the welfare system, and they essentially desire that all non-wealthy people become the equivalent of corporate slaves — forced to work with no rights or legal recourse.

  9. Jimcat Says:

    "Let the corporations offer you a choice: starve, or sign away all your legal rights with regards to our employment contract."

    I agree with the basic concept that the purpose of government is not to give big corporations carte blanche to do whatever they want for profit, and screw over the employees, customers, and anyone else who gets in the way. That's why I'll never become a Republican in the foreseeable future. But with that being said, the choices are not as limited as John makes it out to be.

    There are plenty of small-to-medium businesses in this country that have no desire or need for employment contracts of this sort. And those are usually the businesses that are driving the most growth and innovation. There is also the option of starting one's own business and writing one's own rules, although of course not everyone is cut out for that.

    Yes, I'm aware that we're in a severe recession and there are some people who are in a situation of "take this job or lose your home". In that case, you do what you have to do. But recovery will happen and in its wake a proliferation of new businesses that, we can hope, will learn from the negative examples of the last ten years.

  10. Ed Says:

    Just watch how fast these kinds of "agreements" become standard practice at employers of all types.

  11. ladiesbane Says:

    Are the projected new businesses large or small? I don't think small employers would be able to afford to defend such agreements, and would not need the protection (individual suits versus class action) anyway.

    My small, family-owned company was just sold to an international giant, and I had to sign reams of paperwork swearing, among other things, never to name them publicly (even if they eliminate my department in three days, when the deal becomes final.) But there was no arbitration agreement. I'm not saying it's not the wave of the future, but some industries might be far less likely to adopt them.

  12. Monkey Business Says:

    Ah, the Bush years. They're like the gift that keeps on giving.

    Someday our children will look back at this point in history and say "Seriously guys, what the fuck were you thinking?"

  13. BillCinSD Says:

    The Standard and Poor's method of worker's rights. Because it worked so well for the financial industry

  14. Parrotlover77 Says:

    Just a little anecdote. I bought a car the other year and wouldn't sign the loan agreement (dealer loan) until they scratched out the arbitration agreement portion and initialed it. They did. That felt really good. I have no clue if that holds up in court (I would think so, but, I'm sure some loony right wing judge would find a way to invalidate it), but it was worth it to see the finance guy at the dealership sweat out losing my purchase due to that clause.

    My personal opinion is that private arbitration needs to always — without exception — be optional. This needs to be law. I have no problems with arbitration being the 'free' route and the court route require the filing fees, attorney, and whatever other financial/PITA obstacles they want to throw in the way of the little guy. That's another battle for another day.

    But being forced to sign away your rights to sue (unless you don't want a job, you have NO choice — find a company that doesn't have that in their employment terms in this day and age)… That's fucking UNAMERICAN. I mean that in the purist sense. The USA is the most litigious nation on the planet and, by god, that is a good thing! It may seem not that way sometimes, but it's the threat of lawsuit that makes your life bearable and relatively safe. Lord knows we can't count on the legislature to help in that respect.

  15. JohnR Says:

    It's been interesting to watch how quickly the dismantling of the Constitutional Republic that the FFs agonized and fought over has picked up speed in recent years. It took maybe 150 years for the boys to work out how to get around or eliminate many of the Constitutional limitations on the powerful, but the last 50 years or so have seen an almost logarithmic curve in Constitutional destruction. Nobody's even really pretending any more, since the American populace is pretty much a Barnum wet-dream of rubes and willing suckers, eager to hand over their life-savings to the nice man in the flashy suit.

  16. Nunya Says:

    I recommend doing away with the civil courts and replacing them with dueling. I have a feeling corporations might be a bit more reasonable in their contractual obligations.

  17. Jimcat Says:

    Nunya, are you kidding? The corporations could afford to hire professional duelists. Not only could they get the best talent, but they'd have a lot less stake in the outcome than an individual out for justice.

  18. comrade x Says:

    "Remember where you are. This is Thunderdome. And Death will take the first man who screams."

  19. Nunya Says:

    @ Jimcat – Yes, I was kidding. A little tongue in cheek humor is all I could come up with to combat a giant stake through the heart of workers rights in this country.

  20. twiffer Says:

    not being a legal scholar, i must ask a question: how are such agreements not a violation of the 7th amendment? you know, this one:

    "Amendment VII

    In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law."

    also, my personal favorite, the 9th amendment:

    "Amendment IX

    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

    the 9th is the perfect rebuttal to all those assholes who cry "where in the constitution does is say you have the right to X???" the 9th amendment, that's where. i'd think the right to gainful employment without having to waive your constitutionally guaranteed rights would fall under the 9th.

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