And with a 5-4 vote, the Supreme Court decides to side with the fine print over the consumer:
Fine print in everyday consumer contracts can include provisions that require Americans to surrender their rights to file class-action lawsuits, the U.S Supreme Court ruled Wednesday, overturning a lower court ruling.
The ruling could have immediate impact on consumers’ ability to fight against companies when they feel their rights have been violated. It also raises questions about the future of class-action cases.
Consumer advocates roundly criticized the decision.
“(The ruling) is a devastating and far-reaching betrayal of the most fundamental principles of American justice,” said Nan Aron, president of the Alliance for Justice, a civil rights advocacy organization. “(The court) has effectively removed any incentive for corporations to behave within the law.”
***By a 5-4 margin, the Supreme Court overturned the appeals court ruling on Wednesday, with the majority essentially saying that federal law encouraging use of arbitration trumps state laws aimed at preserving consumer rights.
“Because it stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress … the judgment of the Ninth Circuit is reversed,” wrote Justice Antonin Scalia in his opinion.
But don’t you dare note that the court is a bunch of reactionary right-wingers who will, every chance they get, vote in favor of the corporate whores. That would make you shrill and unserious.
This rule is probably necessary to deal with all the health insurance contracts old people will be navigating in the future under Ryan’s Plan to put all seniors at the mercy of the market and fine print.
Comrade Scrutinizer
Who could ever have guessed this would happen?
Some Guy
Jesus Christ in a bucket. What a bunch of assholes. Expected, no less enraging.
eemom
hey, I said you were talking out your ass. I NEVER said you were shrill and unserious.
General Stuck
the cherry on top is the fact the wingnut, supposed federalists, once again showed that they are states rights persons unless it hurts business and helps consumers. Then they follow the money. usually
General Stuck
Drat, eemom is so gonna spank my fake lawyering ass.
Corner Stone
Why don’t you just come out and say eemom is a stupid, stupid poopyhead?
Because she is.
JPL
I’m having really bad thoughts that have about something nefarious happening to five of the court members.
eemom
Also too, I could note that the federal law favoring arbitration has been kicking the shit out of everything that got in its way since about 1920 — but no doubt you would respond with a detailed historical exegesis about how every Supreme Court majority since then has been a bunch of reactionary right-wingers who will, every chance they get, vote in favor of the corporate whores.
AND that this is a pro-Commerce Clause decision that is going to be hard for the whoremongers to get around when they torpedo the ACA — but I’m sure a devastating rebuttal awaits that too.
So back in the boat I go.
General Stuck
@Corner Stone:
Look what crawled out of the shithouse. The mouthy little Texas Rat.
Rommie
Sometimes the Invisible Hand needs to be the Invisible Fist, and guided to deliver Great Justice.
Or, Hoocoodanode?
4tehlulz
Bush, Gore, same, etc.
eemom
@Corner Stone:
srsly, dude? You’re letting your little boy write the comments for you while you’re off hunting Nicks?
burnspbesq
@Comrade Scrutinizer:
Yes, it is shocking that five members of the Supreme Court would correctly interpret a Federal statute.
I’m not sure I like the outcome, but this is a fairly vanilla pre-emption case, and based on one quick read of the majority opinion, I’m not prepared to say that the majority got it wrong.
General Stuck
Delivered from the business end of a pitchfork
Corner Stone
@General Stuck: What? You want me to expound on the exegesis that you are also a poopyhead?
Because I can do that.
John Cole
@eemom:
I so wish that was shorter so I could make it a rotating tagline.
Corner Stone
@eemom: Shit. You’re lucky I don’t let my 6 yr old post here. He would blow you out of the water you whale-esque POS.
Warren Terra
Could Stuck, Corner, and eemom please find a chat room someplace instead of filling up threads – especially fresh threads – with their flirting?
kthxbai
maven
Surprisingly, this has not been on the ‘news’. Oh, silly me.
Breaking News; a large garment bag, possibly containing Kate M’s wedding dress was seen being brought into her London hotel…….
Mike in NC
And to think people used to say we had the best Congress money could buy…
handy
@Corner Stone:
Haha. Thanks for that. I needed a laff.
@burnspbesq:
And oh lookie here. In rides the lawyer guy making it all better, telling everyone how shrill and unserious they are.
Cacti
Read what you sign, people.
WaterGirl
@JPL: I was just about to post, asking someone here to remind me why it’s so wrong to kinda hope that one of those guys croaks or disappears or something, but I see now that I would be asking the wrong crowd.
handy
@Mike in NC:
Well part of Congress confirmed these guys so there’s that.
Warren Terra
@burnspbesq:
I don’t know what the law says. Maybe you’re right that this is a correct, even obvious, interpretation of the law.
But it’s a pretty horrible day for justice. If the law now says – as I read it – that any firm I’ve signed a contract with has the right to abuse me to their heart’s content, and I have no recourse outside of their pet courtroom, which they have chosen and paid for, I’m pretty well screwed. Because I don’t know about you, but I find that contracts brimming with small print are becoming a fairly regular thing to encounter, often for relatively minor purchases or even free-to-the-user software.
Woodrowfan
and, once again, a big f-ing THANK YOU to those in the swing states that voted for Nader over Gore because “there’s no difference between the two parties” or who stayed home in 2010 because their pony wasn’t the right color..
Warren Terra
@Cacti:
I’ll just take advantage of my imaginary JD and my unlimited quantities of free time, and do exactly what your wise words recommend. I expect everyone will join me in adhering to your sage advice.
General Stuck
@Warren Terra:
Filling up threads? hell, doubt I comment in more than one out of every four or five threads anymore, and then only a comment or two usually. Cole, Get this concerned person some smelling saltz before it faints.
stuckinred
Rachel has Andrew Bacevich on.
Omnes Omnibus
@Warren Terra: Unfortunately, it is possible for something to be a correct interpretation of the law and result in a horrible day for justice. The recourse is a better Congress and a new law.
Corner Stone
@Warren Terra: WTF is wrong with you? Don’t like it? Fuck off to some other space.
IOW, shorter me, and etc _ fuck you.
Frank W.
How old is the oldest of the five? Any chance one will kick off in the next few years?
Scott McArthur
Words fail. Pelican Brief Time I guess. These guys live to make people miserable.
Xenos
Federal class actions are a messy, expensive process, and I was not aware that there were a significant number of contract-based suits out there anyway (all I can think of are some big cell-phone cases, and an airline luggage-fee case a couple years ago).
This battle of the war was lost a long time ago, and this is just the mopping-up phase. All there is left is the political reaction, which could go toward a Lily Ledbetter style push to change the law or a push for growing an anti-corporate social movement. Grab your nearest Brandeis biography to see how it can be done.
lamh34
@stuckinred:
I watched part of Rachel’s show, but I was disappointed.
Lawrence O went all in on NBC Entertainment and later in his interview wit Orly Taitz(sp?). Rachel decided to call out CNN’s Ed Henry…weak sauce by Dr Rachel IMHO.
BTW, speaking of Lawrence O, did ya see his interview with Orly??? He literally shut her down. Seriously, he actually told his producers to “cut her off” when she started spewing her crazy BS.
Damn, but Lawerence O was shrill!!!
I’ve got to see the re-broadcast. Lawrence O’s show tonight was a thing of beauty. He may even have done Keith O proud!
ETA: I did appreciate her last guest though!
Guster
Didn’t ABL say you could scrawl some legalese on a contract (re. her run-in with some crappy medical clinic) to mumblemumblesomething the contract?
I keep wanting to do that, except of course I’ve got no idea what it is.
schtum
So, if I put in a contract that the signatory must submit to Sharia law to resolve any disputes, that’s legal now?
Omnes Omnibus
@schtum: Potentially, yes. Imagine the fun one could have with that.
Corner Stone
@Guster: Usually I mumblemumblesomething things to get to mumblemumblesomething when it’s really needed.
slag
@Warren Terra: Hehe. A friend once commented that he hates it when he goes home to visit and his parents start treating him like he’s twelve. But he hates it even more when he starts acting like it. I think of that every time I see those three +JSF in a thread together.
@Corner Stone General Stuck eemom: You guys really do bring out the worst in each other. If you can’t say anything nice, at least say something unpredictable.
Cerberus
@Warren Terra:
Yeah.
Also, I’m sure it’s “correct” legally to say contract law triumphs. Often because the idea that contract triumphs makes law so very tidy.
But there needs to be a fundamental limit on what one can sign away, because the current nature of contract law is to make whatever the maximum one can get away with be standard especially with regards to terms of use for products that you have already purchased or employment contracts where your options are artificially limited (especially with regards to goods or services where there aren’t realistic alternatives (see what is industry standard)).
And furthermore, it removes any realistic protection from consumers when it is possible to shield yourself from any realistic seeking of damages. If one can determine the court, the judge, the lawyer, the stage, and has contract lawed their way out of liability, they can pretty much poison you at will, set fire to your corpse and drop you off onto your family’s dinner table while cackling like a supervillain and there is no real means of seeking justice or even damages.
This seems like one of those times where the letter of the law may be correct, but this interpretation completely shields corporations from any type of enforcement or retribution for violations of consumer safety. Especially when seen in concert with the myriad of laws that require arbitration or civil lawsuits to address damages from direct harm.
I’m sure to the lawyers this is tut tut, and don’t you know anything about the glory of contracts. Don’t be a sucker, but this has severe social impacts.
You want people to not feel doomed by a system. If there is not at least the illusion of seeking restitution and most importantly if corporations do not feel at least partially liable if they kill people, then you will have corporations just cutting corners that they know will cost lives because there isn’t a real financial cost to not doing it. And eventually you will have citizens deciding that corporations and lawyers have decided that they are deserving of death.
And these citizens will find and kill these corporations and their lawyers. They will string them up from lampposts and they will take their stuff.
Because that will be the sole means by which they could get even the illusion of justice and restitution.
Maus
@22: Perhaps you can provide all the free market alternatives to mandatory, binding arbitration on all of my services and goods? Wait, there aren’t any? Invisible fist yourself if you’re going to claim that there are alternatives and that it’s our fault for “not reading the contract beforehand” just because you’ve never tried to seek out an alternative.
tkogrumpy
High school dropout with a question for da lawyers.Shouldn’t the consumer now get some pro consumer org. w/ lawyers to draw them up some one size fits all boilerplate counter contract for the seller, manufacturer to sign or else no sale?
slag
Damn! Moderated. And I thought that comment was already pretty moderate. Ahhh well. C’est la vie.
BR
@Guster:
I know what you’re referring to, and I want to know too.
Xenos
@schtum: These are adhesion contracts, and in some cases there is no occasion to sign anything, much less negotiate or pretend to negotiate. When your contract comes printed on the back of your ticket, your only option is to ask for a refund.
And as much as I love the idea of activist state AGs beating up on abusive corporations, that is no way to run a modern, integrated national economy. This battle has got to be won at the national legislative level. And in the mean-time it is absolutely critical to stop GOP control over the executive branch. Because the next Bushie (god forbid) is going to seed the agencies with corrupt shitheads so deep it will take 50 years to rebuild Washington.
eemom
@Omnes Omnibus:
indeed, I think that issue has come up in the context of prenups between Orthodox Jews. I think it was enforced, but I’m not sure.
Cerberus
@tkogrumpy:
No, that’s class warfare.
Meanwhile this is mumblemumble, read before you sign, letter of the law, contracts are sacrosanct, industry standard that doesn’t admit its industry standard is totally not a monopoly, mumblemumble.
So, shut up.
slag
@burnspbesq:
Are you suggesting that the 4 on the court are activist judges? And that the 5 are just the “correct” ones?
tkogrumpy
@General Stuck: I’m sending a big wet internet kiss your way.
Korea Beat
The good news is that this is a case that Congress can overturn whenever it wants. All it has to do is adjust the statute so that it explicitly disclaims intention to override the states’ regulatory scheme.
And I agree with eemom that this case makes it more likely ACA will survive judicial review.
Yevgraf (fka Michael)
There is no real risk of vigilante retribution against corporate officers, directors or lawyers – that’s what cops and tasers are supposed to prevent.
Unless, of course, the solid middle-class paystream to cops gets disrupted somehow.
Matthew Reid Krell
Shorter eemom:
You’re Wrong, Not Unserious.
Omnes Omnibus
@Cerberus: Until there is a change in federal law, any suits need to be filed in state courts where there are remedies.
gex
@Cacti: What I have learned most in the last decade is that it was a mistake to buy in to the rat race/American way.
I’m going to start by withdrawing as much as I can from my consumerism and sign fewer things in the first place. Then what I do sign will be scrutinized like crazy.
Then these companies and anti-citizen USSC rulings can have a smaller impact on my life.
kc
Well, I’m sure the “tenthers” will be all up in arms about THAT.
Hahahaha, kidding, of course.
gex
@WaterGirl: Depends on what answer you were hoping to get.
JPL
@Frank W.: Unfortunately, the oldest members are the sane ones. I’m an extremely unlucky person and I am praying for Scalia’s health.
Cerberus
@Xenos:
Yeah, choice between nothing or purchase is pretty onerous. Because “the markets” are rarely free. People don’t make decisions with full freedom to shop around. If its standard they end up having to accept a hideous employment clause or starve. End up having to sign away massive amounts of personal freedom or go without a service that has become necessary or unavoidable (yeah, the right not to fly really matters when your business has scheduled business travel and no means unemployment and starvation). When the right to use something you have purchased hinges on signing away your legal rights of usage.
That is not made with full consent. That is not in line with the spirit and in fact, very technical letter of contract law (we here in America are very good at getting gray with the consent).
If we had a functional social safety net in this country. If doing without these services was fully optional in the sense of being able to be a participant in modern society to the full degree (i.e. every non-optional service was tax-payer funded and free of service to all denizens). If there was no possibility of punitive actions for refusing to sign contracts.
Sure, let the letter of the law run roughshod.
Here, it’s just a bunch of contract lawyers asking to be first on the gibbets.
Seriously, you don’t fuck with the illusion of justice. People are willing to accept a shit-ton of shafting as long as they have the illusion of being able to address grievances in a court of law. Take that away and eventually, well…we don’t want that society.
Xenos
@Yevgraf (fka Michael):
Actually, that is what the national security state does. Case in point is a lawyer friend of mine who bought a copy of the “Anarchist Cookbook’ on Amazon and wound up on the no-fly list.
gex
@Guster: There are even stickers you can order, IIRC to save time and make sure you get it right.
ETA: http://smallprint.netzoo.net/reag/
Stillwater
Has BTD showed up yet to say he agrees with the ruling?
Cerberus
@Omnes Omnibus:
Why do I think this has to do with the likely BP class-action suit working its way up the pipe?
It affected multiple states, its a federal issue. Oh darn.
tkogrumpy
@Xenos: So, that’s how you get out of having to fly. I need another copy anyway mines dog eared from falling off the edge of the bed 5000 times.
Omnes Omnibus
@Cerberus: Well, shit, I am sorry I can’t fix everything right now. A lot of cases can be handled in state court under state law. I am not saying it is a perfect solution, but it is a route that people can pursue to seek redress.
Guster
@Xenos: Here’s my really stupid, naive, tax-resister-level question:
“These are adhesion contracts, and in some cases there is no occasion to sign anything, much less negotiate or pretend to negotiate. When your contract comes printed on the back of your ticket, your only option is to ask for a refund.”
So I wanna buy a ticket to a concert. On the ticket, there’s an ‘adhesion contract,’ which says I agree to X, Y, and Z if I accept the ticket, right? But I sent the ticketseller a postcard last week with an adhesion contract in small print, saying that if they accept my money on such-and-such a date, they agree to X, Y, and Z.
The whole concept seems like madness in a jar.
Cerberus
@Yevgraf (fka Michael):
Sure, and that’s what’s holding the inner cities where all hope has already been lost in the illusion of justice…
But what happens when a critical mass of white middle class people are the victims?
Or as you note, the same greedy bastards overstep and start targeting the cops hoping their private armies protect them?
Other countries are filled with object examples of why you don’t squeeze people out of at least the hope of peaceful solutions. Because people really don’t want to violently rebel or smash shit up or even really get physical revenge. They want to live in peace and will accept a lot of punishment on the ride.
But too much and too few options and suddenly you start getting rebellion, especially from the youth and once examples start, they get hard to stop.
Xenos
@Cerberus: The first step is to let Americans know that the market is not free, and that in many respects they are serfs, including the bottom 3/4 of the upper middle class. The legal solutions need to follow the political and cultural change, tovarich.
Guster
@gex: Brilliant!
Thanks.
slag
@Stillwater: Isn’t it interesting that all the lawyers here regularly find themselves siding with Scalia, Roberts, Thomas, et al? You’d think they’d be voting Republican in that case. Hate to see more of those liberals on the court “incorrectly interpreting” shit and whatnot. Maybe next they’ll be “literally interpreting” the Bible for us.
MikeJ
@Guster: I always make a point of modifying eula.txt on any installation media for computer programs.
Microsoft and Apple both own me a shit ton of money.
Perhaps take a pen and cross though things on the ticket you don’t like (initial them too!) and if they accept the ticket, they accept your modifications to the contract.
Chuck Butcher
@Corner Stone:
TX weather was not very hospitable to me on either trip through. On the way out, highs of 44F which sucks on a cruiser bike and on the way back when the Dallas fair got blown to shreds I was in that as headwinds 45-60mph and at 60-70 mph road speed that adds up to … a lot. People were friendly (I’m white and riding an expensive pretty Harley) and I found the “private clubs” rather quaint. In OR and most places you’d go downtown to find a bar ,,, not Texas. (no I do not drink alcohol)
rikyrah
this isn’t a shock in the least…
fhtagn
@Warren Terra:
Corner Stone, yes. The other two are kind of funny.
srv
I’m liking the Washington Times take on the second certificate of live birth.
They see it as a proof that the people have no power anymore, as the 4th estate failed to challenge power and rectify this injustice against true Americans years ago.
The right is a certifiable set of contradictions tonight. How do people manage that without their heads esploding?
Cerberus
@Omnes Omnibus:
Sometimes, depending on the state.
It’s a bad situation. What do you want from me? To say everything is sunshine and roses and that cutting off yet another avenue for redress dead (oh, make sure they can’t appeal to federal or you’re fucked) won’t lead to a lot of grieving families with axes to grind or a lot of companies crossing another avenue of worry off their perceived financial liabilities? Well, it’s not. Things are getting squeezed really tight, options are more and more absent and there is less and less to lose even for those of us with a lot of advantages.
And every day they are trying to rig the game a little more and blocking all attempts of even the slightest redress.
The reason that liberals are miserable, whiny sods who feel defeated and powerless is because there are greater and greater walls between what is socially supported and what we are seemingly allowed to do with our nation. We are losing faith in any real addressing of life or death issues. And we’re just the wonks. On the street, there are whole cities that have populations in the hundred thousands who have pretty much given up on the system.
And every day that system gets worse.
You know what? I’m big on optimism. I’m big on looking at the big picture and saying it will all be okay. I desperately want to remain happy and say, hey, it sucks, but s’all good, we will survive.
But this shit has got me scared.
The ruling class has pulled out all the stops, begun the big firesale before fleeing the country and the tension is just way too high. I’m genuinely scared that there is no waiting it out and fixing it, that there will simply be blood and pain and death. And I’m scared that I’m as likely to be a victim of it as the people who deserve it. Actually…more likely.
I want to be optimistic, but news stories like this, just means I can’t. Not anymore.
Nick
I’m really glad so many on the left decided not to show up for Gore and Kerry seeing as they weren’t “exciting” and everything, because those two SCOTUS justices Bush appointed…big fucking help
OzoneR
But I thought Sotomayor and Kagan for center-right picks?
Darnell From LA
Who cares about the Supreme Court? I will still vote 3rd party in 2012 because Obama didn’t give me my fucking Unicorn! And don’t you dare try to defend him, cos if you do your are NOT a real progressive. And don’t even try to tell me I’m not Obama’s real base. I am white and progressive, and therefore NOT racist either. I just happen to think Obama isn’t acting like the black guy I thought we elected.
Cerberus
@Xenos: And we’ve got the social change. The youth sector views full socialism positively. High tax rates on the rich have something like 70% voter approval when not obfuscated with misinformation and most people when describing their ideal system describe one in line with a Scandanavian model.
That’s the disconnect.
We have all the social will for change unforeseen in scope, because we’ve delayed over 30 years worth of political change while society kept changing.
We just can’t overcome the political and legal impositions.
I’m working on the social as best I can, every inch by inch, but that’s not the real problem.
Guster
@MikeJ: That’s what I don’t understand. I can stick a corporation with a ridiculous contract almost as easily as they can do it to me. I could shove one in the ‘memo’ line of every check I send to every utility. “By cashing this check you agree to X and Y.”
The difference is that I don’t have law firms at my command? There’s gotta be more to it than that.
celticdragonchick
Somebody want to fucking remind me why I should be rooting for competent counsel to defend DOMA in front of the SCOTUS???
Chuck Butcher
My construction contracts in clearly legible print state that you will accept Oregon Construction Contractors Board arbitration. Before you blow a gasket, the OR CCB is a consumer protection agency and not my automatic friend. There is real experise there and it is considerably cheaper for all parties – that expertise is both contractor and consumer representatives, strong on consumer. A winning consumer will do considerably better financially with that arbitration than in a court.
No, I’ve never been in a case and I never want to be.
Corner Stone
@fhtagn: Ummm…ouch?
OzoneR
@celticdragonchick:
Because Glenn Greenwald says so and he’s gay…in Brazil.
slag
@celticdragonchick: I believe the implication here is the same implication that underlies the majority of these SCOTUS posts. It doesn’t matter what kind of counsel the defense gets. The outcome is already decided. And, to me, it seems pretty hard to find situations where that’s not been the case. So, I wouldn’t worry about it, if I were you.
Omnes Omnibus
@slag:Oh, fuck you.
TooManyPaulWs
My problem with this ruling is threefold:
1) Not everyone reads through the legal disclaimers they have to sign to get any kind of service. Let’s be serious. There’s like 50 pages of the disclaimer and filled with legalese that most people can’t comprehend.
2) Everyone is kind of screwed because in order to get anything – a car, a house, a free email, access to wifi at an Internet hotspot, a Twitter account – you’re forced to agree to the company’s legal disclaimers and can’t negotiate any of the finer points you disagree with. And I’m talking about things that are – especially email – impossible to live without in this environs.
3) Who really defines the arbitration process, the federal courts or the company holding the legal disclaimer? If it’s the company, there’s no unbiased third party involved. Doesn’t that violate due process…?
Mark S.
What federal arbitration statute are they talking about?
gex
@TooManyPaulWs: Due Process has already been found to be a privilege I suppose. It is optional for gays and enemy combatants, for instance.
Linnaeus
I’m reminded of that line from Anatole France about how the law in its majestic equality forbids the rich as well as the poor to sleep under bridges and such.
MikeJ
@Guster:
Nope. That’s about it.
Have you ever seen the movie Cabaret? There’s an appropriate song.
Chris
I think my favorite part is conservatives shitting all over state’s rights.
burnspbesq
@schtum:
“So, if I put in a contract that the signatory must submit to Sharia law to resolve any disputes, that’s legal now?”
It’s always been permissible for parties to a contract to agree what law applies. Their wishes aren’t always followed by the court if they end up in litigation
slag
@Omnes Omnibus: Totally unnecessary. That wasn’t an insult. That was an observation. If you’re suggesting it’s an incorrect observation, you’d be more persuasive if you explained why. Either why you consistently side with Thomas, Scalia, Roberts et al on issues and yet still vote Democratic knowing that potentially means another wrongheaded Sotomayor on the Court or why you don’t side with them and that observation is incorrect.
Omnes Omnibus
@gex: We have had bad Supreme Courts before. We will have bad Supreme Courts in the future. The 1930s through the 1960s spoiled a lot of people.
eemom
@Omnes Omnibus:
Omne! You iz my reasonable, diplomatic role model. What happened?? : (
Suck on this, Greenwald-lovers: Obama appointed two of the four Justices that dissented in this case.
a hip hop artist from Idaho (fka Bella Q)
Just shoot me now.
kthnxbai
@slag: Oh fuck you with Reagan’s shriveled dead dick. I got better things to do with my time than be insulted by you. Like figure out how to pay (without health insurance and without much recent income, since when we don’t represent we don’t get paid) for a cranial MRI to determine if I have a pituitary tumor now that we’ve ruled out all the simpler explanations. So I ain’t got time for your shit. Did I say fuck you with Reagan’s shriveled dead dick yet?
burnspbesq
@slag:
“Are you suggesting that the 4 on the court are activist judges? And that the 5 are just the “correct” ones?”
Nope. Not suggesting that or anything like it. Haven’t had time to read the dissent yet.
Omnes Omnibus
@slag: Fine, I, for one, do not consistently side with the conservatives on the Court. I also denounce Stalin and the broccoli mandate. Therefore, your statement is incorrect.
eemom
@slag:
no, he’s right. You’re an ignorant asshole. We’re not “siding with” shit by pointing out that it’s not surprising to find conservative justices interpreting the law in a conservative manner when it suits their ideological purposes to do so.
That’s in no way inconsistent with the fact that we’d RATHER have more Sotomayors, Ginsbergs, and Kagans on the Court. Except to people like you, of whom it’s been said: “A foolish consistency is the hobgoblin of small minds.”
negative 1
@burnspbesq: I’m curious if you think then that they “correctly” interpreted the statute what exactly makes the “incorrect” interpretation. Minority opinion? Disagrees with you? By the by, we get it – you’re a lawyer.
The thing is you could say ‘sides with the corporation’ and get it right. Every. Single. Time. But I’ll put my money where my mouth is. I’ll bet actual cash on the next case that pits corporations vs. activist, consumer or employee. $1,000. You’re a lawyer, I’m sure you can afford it. I know, I know, no one’s smart enough to understand the nuances or we haven’t read the opinions – in which case it should be easy money. So reply and I’ll exchange e-mails with you. Unless you think that my unserious interpretation isn’t really the “incorrect” one.
Omnes Omnibus
@eemom: That shit pissed me off.
mangrilla
@OzoneR: I think it’s more just because, at least for liberals, egalitarianism is kind of a big deal, and egalitarianism isn’t particularly served if we start saying, “You shouldn’t have adequate representation because I disagree with you.”
rob in dc
This isn’t as cut and clear as many people are making it out to be. The majority opinion is badly written and incoherent and the law seems to in fact favor the dissent as far as I can tell. Section 2 of the FAA basically carves out swathes of where the FAA applies and California law seems to fit squarely within that part of the law. It’s pretty damn hilarious to watch Scalia the avowed new-textualist (conservative analysis of statute) pull out every liberal trick to justify this decision on behalf of his corporate masters. I agree this makes ACA falling unlikely though, but honestly these hacks have so little integrity in their jurisprudence that they could figure out a way, here’s to hoping one of em dies.
a hip hop artist from Idaho (fka Bella Q)
@Omnes Omnibus: I had the same response. I was a little wordier, and less gracious. You win. ::bows::
I’ll stock up some extra commas for you for the weekend. Here’s a few now:
,,,,,
Cacti
@Warren Terra:
Or don’t.
It’s no skin off my huevos if you can’t be arsed to spend more than 30 seconds on the binding legal document to which you voluntarily scrawl your mark.
slag
@eemom: Yes, but one more Sotomayor, Ginsberg, or Kagan likely means this and all those other cases go the other way. And you would then be stuck with all those incorrect outcomes. Doesn’t that bother you?
slag
@Omnes Omnibus: That’s reasonable. In looking back, I shouldn’t have said “all”. I should have said “many”. I’m being honest when I say I wasn’t trying to slur lawyers overall.
eemom
@slag:
*I* never said this was the “correct” outcome, shit-for-brains. Please see my comment #8 for further instruction as to what I actually said.
burnspbesq
Here’s what I don’t understand about this case.
The underlying, substantive claim is for false advertising, i.e., that AT&T failed to tell plaintiffs that they had to pay sales tax based on the retail price of the “free” phone. The California sales and use tax law says that, quite unequivocally. There had to be a point during the transaction where the salesperson asked plaintiffs for a credit card so that AT&T could collect the sales tax. And one assumes that if plaintiffs had asked why the salesperson needed their credit card, the salesperson would have given a truthful answer.
So what’s really going on here?
MikeJ
@eemom:
So what you’re saying is that conservatives will vote the conservative position, regardless of the law. This is pretty much exactly what John Cole said when you disagreed with him and said it was foolish to think conservative justices will ignore the law and vote the way they want.
mangrilla
@burnspbesq: Burns, when you buy a phone, you sign a 2 year contract, here a free phone was included, but remember that you’re giving them your credit card info to be billed monthly for the phone in the first place.
burnspbesq
@negative 1:
“The thing is you could say ‘sides with the corporation’ and get it right. Every. Single. Time. But I’ll put my money where my mouth is. I’ll bet actual cash on the next case that pits corporations vs. activist, consumer or employee. $1,000”
No deal. I don’t need your money.
AT&T itself lost a major Freedom of Information Act case in the Supreme Court about six weeks ago.
Mark S.
From another article:
That’s one of the stupidest slippery slope arguments I’ve ever heard. Are there any states contemplating such a ridiculous law?
Cerberus
@Xenos:
Ah balls, S word. My point is that social is doing great, the S word is being viewed positively by the youth, we support in 70-80% numbers dramatic changes that moderates and the political classes tell us are politically impossible (single payer, Scandanavian social safety net, high taxes on the rich) and legal and political situations seek to depress voting from “the wrong people”, lower safe and legal means of addressing grievances and overall bar access to the system for those under a certain age.
I’m definitely doing my part for social, every day, even tangling with a few here who believe that the social should wait quietly in a corner until Obama isn’t in power anymore, because accepting the lesser of two evils means you get to shut up about evil.
I guess, this is just hitting a little too deep.
I might have to detox from politics a while to build up strength to keep fighting.
Omnes Omnibus
@slag: A couple of quick points. There is no one right, perfect, absolutely correct way to come to a decision on a case. Courts apply precedent, they use established doctrines for interpretation, they look at signing statements and legislative history. There are conservatively oriented doctrines and liberally oriented doctrines. Frequently when a lawyer says that the Court wasn’t wrong, the lawyer simply means that the decision was in line with precedent and doctrine, that it was one of a variety of results that would be within those bounds. It is quite possible to have a decision where the majority and dissenting opinions are legally sound. It doe not meant that the lawyer liked the result or would not have preferred that the other view had received more votes. It just means that the lawyer can see the the Court didn’t just pull something out of its collective asses (e.g. Bush v. Gore). For the record, I have not yet read the opinion in this case, so I don’t know where I stand on what the Court did.
MikeJ
@Mark S.:
And if not, why not?
eemom
@MikeJ:
No, that’s NOT what I said. God you people are reading comprehension challenged.
The law is not “The Law.” It is NEVER black and white. There is ALWAYS room for argument/interpretation — sometimes reasonable, sometimes not — but there is always room for argument/interpretation.
I just pointed out that there are 90 years of precedents upholding the Federal Arbitration Act against all kinds of challenges from all kinds of state laws. Therefore, whatever the majority here would ideologically want the result to be, and however rightly the result could have been determined otherwise — they had backup in the case law for the position they took. They were not just wantonly disregarding “The Law” because they are conservative hacks.
Shit. Why do I waste my time?
burnspbesq
@mangrilla:
“remember that you’re giving them your credit card info to be billed monthly for the phone in the first place.”
That’s not the way my arrangement with AT&T works. They send me a bill and I write a check. I’m old school.
Korea Beat
@66,
That wouldn’t work because your postcard is an offer to the company, but then when you go to buy the ticket they give their standard terms, which is a counteroffer. Then you pay, accepting their counteroffer, and your original offer was never accepted.
That doesn’t have anything to do with this case. It’s not a contract law case. From the blurb in John’s post this seems to be purely a case of whether a federal statute trumps a state statute. 5 justices thought yes, 4 justices thought no, and Congress can change the outcome by changing the statute.
eemom
@burnspbesq:
Yeah! And we had a nice lawyerly argument about that, didn’t we?
Corner Stone
@slag: Well, I for one am damned sorry. Just god damned sorry I clutter up your otherwise beautiful mind.
Jesus Christ.
Xenos
@Omnes Omnibus: The other point, from a legal professional’s point of view, is that otherwise foolish consistency has the significant benefit of being predictable. Thus, clients can be informed of their rights and liabilities, and can proceed with due care about their business. This makes most lawyers fairly conservative, and rightly so.
To tie this back into the immediate case, federal class actions have been a complex, expensive, and often unpredictable mess. I am no expert on them, but as a consumer who has been in several of them as a beneficiary they are not worth the trouble. They can’t replace an active and accountable regulatory authority, and we may be better off without the illusion that we can privatize regulatory oversight. I don’t know if that is defeatism, a desire to heighten contradictions, or both.
negative 1
@burnspbesq: so that makes the federal government activist, consumer or employee in that case?
mangrilla
@burnspbesq: Smart man (woman? person?). But anyway, I assume that’s how their transaction with AT&T went here.
slag
@Omnes Omnibus:
This is a totally fair point. I just find it discordant with what I have perceived to be some fairly vitriolic/strident discussions of these cases here. It has “bemused” me to see people here defend the majority decision with such vigor with seemingly little acknowledgment of the possible flaws in reasoning behind it–the minority dissent.
slag
@Corner Stone: Oh calm down, Francis. My mind has never been otherwise beautiful.
But be honest…you know what I said was true.
trollhattan
@John Cole:
“Seldom Shrill and Unserious” might could work. “Shrill and Pretend Serious” would work for Sully.
Corner Stone
@slag: No, what you said was stupid and non-insightful in any way.
But wevs.
slag
@Corner Stone: Fair enough. Then you should ignore it completely.
General Stuck
@slag:
How bout your whiny ass piss off. It ain’t original, nor nice, but fitting for precious souls who expect their blog boards to be free of trolls for when their delicate asses show up.
It doesn’t work that way. CornerStone needs regular spankings, or else you get cat sized turds slung from his cell. Somebody has to do the honors, maybe you can take your turn once in a while
a hip hop artist from Idaho (fka Bella Q)
@Matthew Reid Krell:
That reminds me of how I describe my aunt:
Often wrong; never uncertain.
I stole it from the late Robert B. Parker, who used it in a spinoff, I think perhaps a Sunny Randall book.
Often wrong; not unserious
or
Often wrong, but not unserious
would be my proposals for the tagline based on eemom’s wit upthread.
Omnes Omnibus
@slag: The majority decision is usually the thing attacked as being without legal foundation. It frequently has a very good legal foundation; not necessarily one with which I agree, but nevertheless, it is there. I can’t speak for the other lawyers here or talk about specific cases since there are no examples on the table, but it can be annoying when people simply assume that all court decisions are purely made on the political whims of the judges.
slag
@General Stuck: There. See. Now you guys are on the same side of an issue. All better now? Feel free to pass around a hug. We won’t look.
Marc McKenzie
And what’s the lesson from this, boys and girls?
Elections matter.
Of course, anyone who didn’t see this coming…well, ah screw it, what’s left to say?
slag
@Omnes Omnibus:
I get that. But when the outcomes are so predictable and the decisions aren’t necessarily whim-based, isn’t that an indication of a structural flaw somewhere within the legal system? If the outcomes of the Supreme Court are so regularly decided by who appoints the judges, what’s the point of that branch of government?
And again, this is not an insult. It is a question.
General Stuck
@slag:
Isn’t it time for your nurse Rachett shift to be over. And “we”? really, felling a little superior and condescending are “we” tonight?
Omnes Omnibus
@a hip hop artist from Idaho (fka Bella Q): Good thoughts and all that for your tests. I hope everything comes out well.
Corner Stone
@slag: Ignore what?
VincentN
I just wanted to point out that if the Court makes what some consider a stupid decision that is often the result of Congress making a stupid law. Most of the time the Court doesn’t make up stuff out of whole cloth. They find support in existing precedents and laws. So if you want better legal decisions then elect better lawmakers.
MattR
How is there not a single comment pointing out the relevance of tonight’s season premiere of South Park?
slag
@Corner Stone: Exactly.
handy
I’m just wondering how much nap time Clarence Thomas was able to catch during the proceedings before being awaken to fulfill his sworn duty to rule for his corporate masters.
Bob Loblaw
How much does this ruling really even matter?
Whether it’s binding arbitration or the tangled web of class-action lawsuits, the consumer never really manages to do very well for itself in this country when up against corporate duplicity and malfeasance no matter what legal remedies it’s able to pursue.
If the decision makes an overwhelmingly pro-corporate landscape slightly more pro-corporate, can we really be that scandalized?
slag
@General Stuck:
tonight?
Omnes Omnibus
@slag: If you really are interested in court decision making and the legitimacy thereof, I have a book you might want to read. It is called The Myth of Judicial Activism by Kermit Roosevelt. It is quite short and is very accessible to non-lawyers. You should take a look at it.
As far as your question goes, the current conservatives on the Court are a particularly ideological bunch. That is not always the case. Sandy O was a conservative, but she was also interested in being doctrinally conservative and not causing rapid change. Does this make sense?
Triassic Sands
Thank the Baby Jesus that Kennedy is on the court to provide a restraining influence on Scalia, Thomas, Roberts, and Alito. Why, without such a moderate voice, we might actually get some radical decisions.
Omnes Omnibus
@Triassic Sands: Actually, you might. The need to bring Kennedy along could very well have made some of these decisions less crappy than they might otherwise have been.
Mark S.
@VincentN:
From what I can tell, this is a statute from 1925, so this doesn’t have a lot to do with Congress and a lot to do with Court doctrines such as preemption.
I’m interested in Sect. 2 of the statute, which says an arbitration clause “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” The lower courts in this case said the arbitration clause was unconscionable, but I guess the Roberts Five didn’t give a shit.
eemom
@a hip hop artist from Idaho (fka Bella Q):
how about, “the talking ass, serious and unshrill”?
This is my 15 minutes of fame on the line here, ya know.
Ija
@Omnes Omnibus:
If this is the case, why do the lawyers here go batshit crazy whenever it is suggested that THIS CURRENT SUPREME COURT is making decisions based on ideology? No one here is talking about every Supreme Court ever from the start of time, we are talking about the current Justices.
slag
@Omnes Omnibus: Thanks! I will take a look at it.
And yes, your point about this being a particularly idealogical bunch makes sense. But it doesn’t necessarily comfort me that the Judicial Branch is so vulnerable to this kind of homogeneity. In the same way it bothers me that the Executive Branch was so vulnerable to it.
From a personal perspective, I never saw Bush as the problem with this country. I saw the forces that created and enabled Bush as the problem (which is one of several reasons why I am more amenable to Obama than some others might be). In that same respect, I don’t see these particular justices or their whims as the problem here. I see the forces that create and enable them as the problem. It will be interesting to see if your book can convince me I am wrong about that.
Omnes Omnibus
@eemom: I am not sure that it works. If it’s going up top, you want it to be perfect. On another note, I got my diplomacy back.
eemom
@Mark S.:
It is very, very hard to get any contract voided on the ground of unconscionability. “The terms must shock the conscience.”
Or, as the witty BARBRI instructor used to say about the tort of intentional infliction of emotional distress, the conduct has to be outrageous. “How outrageous? REEEAAAL outrageous.”
Mark S.
@Bob Loblaw:
Why have laws at all? The rich are going to fuck us up the ass anyway. Bring on the Trump dictatorship!
On a more serious note, class action suits are an incredibly clumsy way to prevent corporations from nickeling and diming people. This case dealt with ATT overcharging a bunch of people $30, which no one is going to sue them over. What works a hell of a lot better is government regulation, but 30 years of Reaganism has made that often a cruel joke.
Omnes Omnibus
@Ija: Read some of what we were saying upthread. They are certainly ideological, but that does not meant that they will ignore precedent and doctrine to get a result they want. It does mean that conservative precedent and doctrine will be much more persuasive with them.
Bob Loblaw
@eemom:
That’s a good call. You want there to be a certain poetry to it.
“Shallow, uninformed, and lacking identity” is pretty good, for example, but I feel like it loses a little something in the last third.
Bob Loblaw
@Mark S.:
So in other words, you actually agree with me. Mazel tov.
a hip hop artist from Idaho (fka Bella Q)
@Omnes Omnibus: Thanks so much. I might have been a bit abrupt upthread.
eemom
@Omnes Omnibus:
well, frankly, I don’t see why the original formulation
should not be preserved in all its spontaneous brilliance. Because it is CERTAINLY not longer than some of the others up there, e.g., showering with Rahm and tasty mustard.
Cole is just fucking with me again, as usual. : (
WaterGirl
@eemom: I don’t know that Cole is that devious. But if he didn’t do it deliberately, if he sees your comment, he might be wishing that he had thought of it.
gex
@Omnes Omnibus: Well, here’s to hoping the pendulum keeps swinging and doesn’t get stuck.
VincentN
I can’t speak for other lawyers on the site but I know that when I read a Court opinion I care more about the flaws in the legal reasoning that led to the decision than about the motivation behind the decision. Because the reasoning is all we have to go on when we have to use these cases in the lower courts.
So it’s not that lawyers don’t believe that the Justices don’t make their decisions based on ideology. They probably all do to some degree. It’s very likely that one becomes an originalist or a living constitutionalist or whatever because of the political leanings and sympathies one had to begin with.
It’s just that we don’t see moaning about the Justices’ motivations as a productive use of time. For example, if one wanted to argue against a Second Amendment Heller case then you attack the flaws in the reasoning or explain how this case doesn’t apply to this situation because of these reasons. Hollering that Scalia has a hard-on for guns and that’s why he voted the way he did won’t get you anywhere.
Basically everyone here is just saying conservative judges vote for conservative outcomes. okay, that’s like, duh. The more interesting question for lawyers is whether the interpretation of the statute or precedent was at least plausible or completely off-the-wall. If we can at least follow the train of logic then we can effectively argue against decisions we don’t like. You also know what’s more likely to persuade a judge to rule in your favor by shaping your arguments a certain way and using this particular case instead of another.
VincentN
I also feel compelled to point out that judges will often vote in ways that will surprise you. its easy enough to point at cases where the liberals line up on one side and the conservatives on the other but it doesn’t always happen that way. In fact the vast majority of Supreme Court decisions are not 5-4 but are either unanimous or have a clear majority.
A decision sucks when the reasoning sucks. Lawyers care more about how a judge came to a decision than the why.
Ruckus
@Cacti:
Try to buy or use anything that comes with a contract from any medium to large size company without accepting their terms. Want to buy a car, new or used from a dealer? Accept their terms of arbitration which gives any and all avenues to getting a fair deal if anything goes wrong or no sale. House, same thing. Cell phone, same thing. Pretty much any piece of software that you pay for, same thing.
If you don’t sign you don’t get the product/service. Sign and you are almost assured to get screwed if anything goes wrong. Try getting your money back after you read the fine print on the back of that ticket to the ball game. You already accepted it before you read it so you lose.
The consumer always loses. Always.
Mary
@slag:
I haven’t read any of the opinions in this particular case so I don’t know which side I think is correct, but regardless I vote for Democrats because I prefer that we not get shitty regressive anti-consumer laws in the first place. It’s entirely possible to think that a court has interpreted a law correctly but still think it’s a terrible law that ought to be changed.
zach
The solution here is probably to get rid of laws eroding consumer rights at the Federal level rather than hoping the courts give states jurisdiction over these things… not a lawyer, but it seems pretty reasonable that Federal law should govern class action suits that span multiple states.
mangrilla
@VincentN: Vincent, I think that those types of sentiments (conservative judge made a conservative opinion) are important to keep in mind because not everyone we deal with are lawyers and public opinion matters on everything. The current religiosity of the Constitution is staggering and justices like Scalia only perpetuate that by trying to say that there’s one interpretation, one mindset for “the founders”. Only one outcome is Constitutional!
So I think the politicization of the bench is a good point to keep hammering in on for everyone whether it be in cases like this where it seems like Scalia is pretty obviously looking for a way to preempt the Discovery Bank rule, or in cases where things come out a little bit closer but conservative leanings lead to conservative precedent.
PIGL
@Cerberus: I would very much like that society for about a week. That should be long enough.
BTD
@Stillwater:
BTD strongly disagrees with the ruling.
It ignores the plain text of the FAA.
Janus Daniels
Can we sue the Supreme Court now?