It's sad to see the law moving further and further in favor of corporations either way, though I'm very much not a lawyer and, even after reading all this, can't tell if this is as bad as it sounds.
It's not super bad. A FB worker was suing for overtime money. She had the right under the FLSA to force FB to notify her coworkers that they might want to join her suit. FB argued that half of her coworkers were covered by arbitration agreements and they shouldn't have to give that half notice of the lawsuit. The appeals court agreed, ever so slightly eroding the rights of workers.
"slightly eroding the rights of workers". Seems bad enough to me.
How often are the rights of mega corporations slightly eroded? And how do those erosions hold under the weight of appeals by megacorps lawyer hordes and lobbyists?
The rights of mega corporations get eroded very frequently. I think even anti-corporate activists will admit to that. Their concern, generally, is that corporate rights should be not eroded through gradual tiny reforms but blown away completely.
The rights of mega corporations to exploit particular things is eroded frequently by regulation, however the size and power of mega corporations are such that they can devote considerable effort to finding new things to exploit that have not been effectively regulated yet.
They can of course also devote resources to stop regulation of their favorite areas of exploitability.
Also, the large corporations have the lobbying money to influence regulation. Once their behavior is egregious enough to warrant regulation, they able to twist it to be a barrier to entry for new players further entrenching their own position.
The recent trend is about atomizing plaintiffs. Not many people have the financial resources to bring a case on their own, and lawyers tend not to bring contingency fee cases for a single plaintiff without multi-million dollar damages.
Here are some recent cases:
AT&T Mobility v. Conception (2011): Class actions are not an exception to the FAA. That means companies get to fight 1000 little guys individually instead of fighting them as a group.
American Express v. Italian Colors (2013): You have to arbitrate on your own even if the harm is so small that individual arbitration is not economically viable. In other words, you can’t sue unless you have >=$100k for a lawyer or multi-million dollar damages.
Epic Systems Corp v. Lewis (2018): You have to arbitrate on your own even if the harm was interference with your right to concerted activity. In other words, if you are harmed while trying to organize as a group you have to defend yourself on your own.
Arbitration is a Kangaroo court. Large companies are repeat players, and "the little guy" plays once. It is ugly, undemocratic, and wrong. Even the Federal government is trying to force people into arbitration [1].
Have you heard of the Business Roundtable? (Most recently in the news for statement that corporations will have to abandon primacy of shareholder value and start considering all stakeholders. A major reversal of position.) https://en.wikipedia.org/wiki/Business_Roundtable
This is an illuminating history of the lobbying and policy efforts to rollback The New Deal and so forth.
Lobbying America: The Politics Of Business From Nixon To NAFTA
In addition to the excellent cases linked by the other poster, here are some more:
Burwell v. Hobby Lobby (2014) - Companies can refuse to comply with the Affordable Care Act on providing contraception coverage.
National Institute of Family and Life Advocates v. Becerra (2018) - An example of the first amendment as a deregulation tool. Basically SCOTUS ruled "crisis pregnancy centers" can not be forced to disclose that they're complete nonsense and don't provide real healthcare.
In addition, the current SCOTUS has signaled they're open to reexamining the non-delegation doctrine and the unitary executive theory.
Basically, if the conservative wing gets their way, two things will happen: Executive agencies will lose their ability to create regulations, and independent agencies will cease to exist.
This would be a cataclysmic catastrophe. Every agency listed here would either cease to exist or come under a department directly without a board made up of independent members. This would mean direct political interference at all times:
For those who don't want to click, this includes things like the Fed board of Governors, the FCC, the NLRB, and the NTSB.
They would become even more irrelevant if they lost their rule making abilities. All rule making would revert to Congress. Let me try to emphasize how much of a shitshow this would be.
Federal Regulations are mostly technical, and need deep expertise in order to develop them. This is why there's a lot of back and forth between private industry and the government. It's true this probably leads to corruption, but I'm symathetic to the argument that these are the only people with the expertise to develop the regulations in the first place.
For example, here's a paragraph from the FCC regulations around RF exposure and safety:
The SAR limits for general population/uncontrolled exposure are 0.08 W/kg, as averaged over the whole body, and a peak spatial-average SAR of 1.6 W/kg, averaged over any 1 gram of tissue (defined as a tissue volume in the shape of a cube). Exceptions are the parts of the human body treated as extremities, such as hands, wrists, feet, ankles, and pinnae, where the peak spatial-average SAR limit is 4 W/kg, averaged over any 10 grams of tissue (defined as a tissue volume in the shape of a cube). Exposure may be averaged over a time period not to exceed 30 minutes to determine compliance with general population/uncontrolled SAR limits.
Do you seriously expect Congress to A) spend time on this stuff? and B) know WTF they're talking about in the first place? No. Instead, they'll just take already written legislation directly from lobbyists, and it won't be subject to the usual rules around public comment and notice, allowing corporations to pass exactly what they want. This is the entire goal.
There is a lot going on here that is great, but there is one piece that is a little tough to chew.
> Basically, if the conservative wing gets their way, two things will happen: Executive agencies will lose their ability to create regulations, and independent agencies will cease to exist.
It is not helpful to frame this as a left/right struggle. By not helpful, I mean it is not a useful mental model for predicting outcomes. It will also tend to alienate natural allies that come from a different political stripe on other issues.
For example, it was Justice Scalia who wrote the Chevron opinion [1]. Chevron basically says "an agency is granted enormous deference when it interprets the meaning of statutes that grant it authority." In other words, a noted conservative ceded tremendous authority from the judiciary to the executive agencies. The left/right mental model would not have predicted that outcome.
I find that a more useful mental model is, "what do business interests want, and to which industry has the political actor pledged his/her loyalty?" It is important to take into account conflict among the varied business interests. See, e.g. [2]
> [I]nstead, they'll just take already written legislation directly from lobbyists, and it won't be subject to the usual rules around public comment and notice
If you think the notice and comment process is less broken than Congress, I would encourage you to take a look at the comments from the Fed/SEC/CFTC Dodd-Frank rule-making. Rule-making is where Dodd-Frank died.
It's sad that people are so utterly resigned to having an ineffective federal legislature that the possibility of restricting the use of binding arbitration by means of the passage of new laws is not even considered.
Given their conclusion, how do you fix a system like this? Start over from scratch? What does that look like? edit... Maybe it's the American Anti Corruption Act? https://anticorruptionact.org
>What do our findings say about democracy in America? They certainly constitute troubling news for advocates of “populistic” democracy, who want governments to respond primarily or exclusively to the policy preferences of their citizens. In the United States, our findings indicate, the majority does not rule—at least not in the causal sense of actually determining policy outcomes.When a majority of citizens disagrees with economic elites or with organized interests, they generally lose. Moreover,because of the strong status quo bias built into the U.S. political system, even when fairly large majorities of Americans favor policy change, they generally do not get it.
I would mostly ignore the Harvard Law Review's recent cases section. It is written by second year law students with barely any supervision. Circuit Court judges write in plainer, better English than law students.
Also, I know link rot is a thing, but seriously, all of the opinions are available copyright free and probably as PDFs provided by the courts who issue them.
The workers who do have valid arbitration agreements aren't prevented from suing by this case, that was already clearly the law before. That is not in dispute. This case holds that in case some employees are prevented from suing by their arbitration agreements, Facebook can skip giving them notice if it can show the court the actual signed arbitration agreements. That is all.
> Seventh Circuit Holds that Arbitration-Bound Employees Cannot Be Given Notice of Collective Action Proceeding Under the Fair Labor Standards Act.
When SCOTUS upheld arbitration agreements [1][2] it was obvious they were going to use this to strip away other worker rights. If it isn't evident before it is now. This essentially says since the employee signed an arbitration agreement and the other employees also did, this waives their rights to be informed of any type of employee action that might benefit them as a group (here it was overtime pay).
Pretty soon they'll use this precedent to strip away more and more, probably even the first attack on California's innovation and economic key in rebuking non-competes. Part of the reason California's economy is so good in terms of tech and leading edge innovation is that they do not abide by non-competes. I wonder how long it will take them to go after this using this idea that signing arbitration agreements, which should be illegal, removes other protections like not upholding non-competes in Cali.
It always blows me away how in all out war, battle after battle, companies are with the mere idea of unions. It looks like a superpower invading a small island nation repeatedly with little to no defenses. Unions are mostly ineffectual today and most people have been propagandized away from them, but even the hint of a group forming is attacked by rabid corporate lawyers even decades after unions have faded. It tells me that they are greatly fearful of unions. They have nothing to worry about, when arbitration agreements were added to contracts in the early 2000s at my workplace I scoffed at it, everyone looked at me funny. I do not like litigious people, but giving up your entire right to the legal system? Not smart. Here we can see why, now they are using it as a wedge to take more rights that were fought for. Giving up rights so easy that were hard to attain is short-sighted, naive and way too comfortable.
> Over the past decade, the Supreme Court has steadily weakened the ability of parties bound by arbitration agreements to band together and sue. Given the rise of arbitration clauses in employment contracts, this trend has harmed workers since it is rarely economically feasible for workers to individually sue for, say, fifteen minutes of unpaid overtime a day, violations of statutes protecting laborers — like the Fair Labor Standards Act (FLSA) — have become harder to redress.
This will continue and continue. The one-sided and overpowered war rages on against worker rights and freedoms. Ultimately this harms competition and business in general, yes it may be better for the current company, but not the market in general or quality of life. California's non-compete stance that they are illegal is a good example, the market has benefitted many companies and product innovations, other rights are the same. It is short-term and monopolistic/oligopolistic to think that long term this helps the market.
We aren't too far off from being WorryFree(tm) [3]
On firefox I'm not seeing them get pushed down, I'm seeing them get covered. I suspect the citation implementation isn't very polished. Looks good though.
