460 karma · joined September 12, 2012
Stephen Winick. (2022, December 13). The Truth Behind the Hanukkah Dreidel: Metafolklore, Play, and Spin | Folklife Today. The Library of Congress. https://blogs.loc.gov/folklife/2022/12/the-truth-behind-the-...
> These points represent at best pure speculation, which a fair reading of the legislative history quickly undercuts. As Professor Schwartz has pointed out, language in the bill concerning contracts involving commerce was amended at the request of Senator Walsh, who wanted to narrow the effect of the Act, not expand it.178 Prior to amendment in 1924,179 the bill which became the FAA provided coverage of three categories: “any contract or maritime transaction or transaction involving commerce.”180 The application of the FAA to “any contract” would have included contracts not in interstate commerce.181 At the time, contracts not considered in interstate commerce included most employment contracts and insurance contracts.182 Senator Walsh’s amendment limited contracts covered by the Act to any “contract evidencing a . . . transaction involving commerce.”183 His clear intent was to prevent the application of the FAA to contracts such as those of insurance and employment, which he considered adhesion contracts.184 Thus, by limiting the scope of the FAA to contracts which were actually considered in interstate commerce, Congress was reducing the reach of the bill, not expanding it to apply in state courts.
It is possible I misremember or misstated the conflict comment I made above too. I do know that for example: train and airline employees have explicit statues for their contracts. I am also certain that I read at least one article about this conflict between the FAA and other statutes. I am having some trouble locating it at the moment (I've read 198 articles on the topic) though.
[I actually made https://arbitrationinformation.org/ originally as my own personal notes since my memory isn't great. It only turned into a website once I realised that my notes would be useful for other people.]
[3] Margaret L Moses. (2006). Statutory Miconstruction: How the Supreme Court Created a Federal Arbitration Law Never Enacted by Congress. Florida State University Law Review, 34(1). https://ir.law.fsu.edu/lr/vol34/iss1/3
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
[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 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/... pp 1986 note 58 (via citation)
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.
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.
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 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 §IV.F pp 987-991
For all references: https://arbitrationinformation.org/docs/references/
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.
https://arbitrationinformation.org/docs/problems/
At this point it does require legislative action to fix.
Generally speaking, arbitration prohibits court.
> You can always sue. Just not in a class action.
Can you provide a citation?
> any contract that removes your rights is by law, unlawful and void
Which rights? Which jurisdiction?
> You can even sue them for the denial of rights under the color of law
Can you give me an example?
I should write out a more formalized (or at least, copy-pasteable) view here.
(this effort is entirely done on my free and spare time. which I have very little of :( )
(some background)
I've been spending more than a year learning everything I can about arbitration.
1. https://arbitrationinformation.org/docs/problems/ - a detailed, well sourced, listing arbitration problems. I also include positives there. While its biased, it isn't actually biased against arbitration. It is biased in favour of fairness and consumer rights.
2. Every reference used on the website and many more: https://arbitrationinformation.org/docs/references/ -- I have ready everything listed here in full including every footnote.
3. Every supreme court case (and some none USSC) case related. https://arbitrationinformation.org/docs/arbitration/ -- I have ready everything listed here in full including every footnote.
4. I've also read a lot not linked here. I don't include it because I've not yet read in full. I have a backlog of over 265 items to read. I intend to get to them all.
6. I am not an attorney. However, I am deeply familiar with law, have taken the same classes that lawyers take for continuing education (CLE courses) on the topic, and have attended (and will continue to attend) academic conferences on the topic.
7. Real lawyers - including some who have argued cases in front of the supreme court - on cases listed above - have told me that my website is both thorough and accurate. I'd include their endorsements, but I have not yet asked them for permission. Also, the site changes over time and I'd want to figure out a way to make to indicate which version of the site they endorsed.
8. On a personal note: I really dislike falsehoods and unfairness. I am almost obsessive on learning everything I can on this topic. Seriously.
9. I suspect, with good reason, that I can be reasonably be considered an 'expert' on the topic. The only people who know more than me on the topic are likely attorneys who specifically get paid to work on this area (consumer/employment/financial arbitration)
10A. I do have some blind spots: (a) I am not an attorney by training or trade. (b) I have been a client in arbitration but not a representative. Since arbitration is often confidential, and they aren't courts of record, its hard to learn about what actually happens inside the process.
10B. However, I am working on fixing this as much as I can. I'm in touch with both attorneys, academics, and (soon) arbitration providers to see what I could learn. I'm still working on figuring some additional ways to learn more.
[0] Kangaroo Court—Black’s Law Dictionary—Ninth Edition. (2009). In Bryan A. Garner (Ed.), Black’s Law Dictionary (Ninth Edition, p. 409). WEST - Thomson Reuters.
(some background)
I've been spending more than a year learning everything I can about arbitration.
1. https://arbitrationinformation.org/docs/problems/ - a detailed, well sourced, listing arbitration problems. I also include positives there. While its biased, it isn't actually biased against arbitration. It is biased in favour of fairness and consumer rights.
2. Every reference used on the website and many more: https://arbitrationinformation.org/docs/references/ -- I have ready everything listed here in full including every footnote.
3. Every supreme court case (and some none USSC) case related. https://arbitrationinformation.org/docs/arbitration/ -- I have ready everything listed here in full including every footnote.
4. I've also read a lot not linked here. I don't include it because I've not yet read in full. I have a backlog of over 265 items to read. I intend to get to them all.
6. I am not an attorney. However, I am deeply familiar with law, have taken the same classes that lawyers take for continuing education (CLE courses) on the topic, and have attended (and will continue to attend) academic conferences on the topic.
7. Real lawyers - including some who have argued cases in front of the supreme court - on cases listed above - have told me that my website is both thorough and accurate. I'd include their endorsements, but I have not yet asked them for permission. Also, the site changes over time and I'd want to figure out a way to make to indicate which version of the site they endorsed.
8. On a personal note: I really dislike falsehoods and unfairness. I am almost obsessive on learning everything I can on this topic. Seriously.
9. I suspect, with good reason, that I can be reasonably be considered an 'expert' on the topic. The only people who know more than me on the topic are likely attorneys who specifically get paid to work on this area (consumer/employment/financial arbitration)
10A. I do have some blind spots: (a) I am not an attorney by training or trade. (b) I have been a client in arbitration but not a representative. Since arbitration is often confidential, and they aren't courts of record, its hard to learn about what actually happens inside the process.
10B. However, I am working on fixing this as much as I can. I'm in touch with both attorneys, academics, and (soon) arbitration providers to see what I could learn. I'm still working on figuring some additional ways to learn more.
[0] Kangaroo Court—Black’s Law Dictionary—Ninth Edition. (2009). In Bryan A. Garner (Ed.), Black’s Law Dictionary (Ninth Edition, p. 409). WEST - Thomson Reuters. ↩
I have no idea if this is 'extreme' or not but U.S. Government Accountability Office already exists.
> GAO, often called the "congressional watchdog,” is an independent, non-partisan agency that works for Congress. GAO examines how taxpayer dollars are spent and provides Congress and federal agencies with objective, non-partisan, fact-based information to help the government save money and work more efficiently.
See for example:
https://www.gao.gov/products/gao-24-107594
https://www.gao.gov/products/gao-24-107554
https://www.gao.gov/products/gao-21-544t
Or if you prefer video:
https://www.gao.gov/video/comptroller-general-testifies-u.s....
I make no claim as to the nature of claim, the appropriateness of the Sherman act, or if the claims will fail as a matter of law or fact (or neither). I am not a lawyer and am especially clueless on the topic of antitrust law.
I did however, incidentally, see this recently which may be of interest on the topic:
https://verdict.justia.com/2024/08/26/why-elon-musks-and-xs-...
https://storage.courtlistener.com/recap/gov.uscourts.txnd.39...
Parties include the following. The last 5 are advertisers.
- WORLD FEDERATION OF ADVERTISERS;
- UNILEVER PLC
- UNILEVER UNITED STATES, INC.
- MARS, INCORPORATED
- CVS HEALTH CORPORATION
- ØRSTED A/S
docket: https://www.courtlistener.com/docket/69017972/x-corp-v-world...
The actual ruling: https://storage.courtlistener.com/recap/gov.uscourts.txnd.38...
It is consistently infuriating that reports on law don't actually link to the documents they report on.
I originally did not do so since it was incomplete and I was a bit worried about the association.
It's all in a public git repo so my name was never truly hidden. But now that I'm using it more, it does make sense to be more explicit about who runs the site and what "qualifications" I have.
It may not happed immediately but added to my TODO list.
https://arbitrationinformation.org/docs/problems/
there are some very few aspects that can be positives under some conditions (speed, informality, etc.), it is almost certainly outweighed by the negatives.
You might be thinking of "at will employment" - which is the case in 49 of 50 states.
The courts have repeatedly ruled that most arbitration agreements are enforcable.
The FTC has previously attempted rule making to invalidate predispute arbitration agreements, but a trump era Congress "disapproved" the rule. The solution at this point requires an act of Congress.
https://arbitrationinformation.org/docs/problems/ is my website where I try and summarise everything I know along with sources.
The arbitration providers (AAA, JAMS, etc.) have also started implementing their own "mass arbitration" provisions. In some cases even providing subscription bulk pricing.
Other problems: https://arbitrationinformation.org/docs/problems/#mass-arbit...
(I should add the above + references at some point to the website)
It doesn't describe any legal process I'm familiar with.
> As for “flagrant misuse of the attorney-client privilege,” that refers to Google’s “Communicate with Care” initiative. Google trained its employees to add its in-house lawyers on “any written communication regarding Rev Share [RSA] and MADA.” ... It also instructed that, when “dealing with a sensitive issue” via email, to “ensure the email communication is privileged” employees could add a “lawyer in [the] ‘to’ field,” “mark ‘Attorney/Client Privileged,” and “ask the lawyer a question.” ... Google employees assiduously followed that advice... As a result, Google’s outside counsel in this case initially withheld tens of thousands records on the grounds of privilege, which ultimately were rereviewed, deemed not privileged, and produced to Plaintiffs... This creation of faux privileged materials, Plaintiffs contend, “demonstrates that Google intended to harm competition through its contracting practices and its supposed procompetitive justifications were simply pretext.” ...
UNITED STATES OF AMERICA v. GOOGLE LLC (1:20-cv-03010) (citations omitted)
A falsidical paradox is what most people think of as a formal paradox: from the assertions you derive a conclusion which is false (either deductively or inductively).
A veridical paradox is where you derive a true result which appears absurd. it is an informal classification based on intuition. https://en.wikipedia.org/wiki/Banach%E2%80%93Tarski_paradox is a classic veridical paradox.
See for example:
- https://juris-m.readthedocs.io/en/latest/introduction.html
- https://juris-m.github.io/posts/2021-01-17-1.html
Zotero works for only really simple legal citations.