Skip to content

Commit

Permalink
[general] add linter
Browse files Browse the repository at this point in the history
  • Loading branch information
grimreaper committed Feb 20, 2024
1 parent 3abebe0 commit b789315
Show file tree
Hide file tree
Showing 7 changed files with 13 additions and 14 deletions.
10 changes: 10 additions & 0 deletions .markdownlint.jsonc
Original file line number Diff line number Diff line change
@@ -0,0 +1,10 @@
{
// line length
"MD013": false,
// single top level in same doc
"MD025": false,
// bare url
"MD034": false,
// MD026/no-trailing-punctuation
"MD026": false
}
1 change: 0 additions & 1 deletion content/_index.md
Original file line number Diff line number Diff line change
Expand Up @@ -5,7 +5,6 @@ type: docs

# Introduction


Mandatory arbitration is a controversial practice in which a business requires employees or consumers to agree to arbitrate legal disputes with the business rather than going to court. Although seemingly voluntary in that the employee or consumer can choose whether or not to sign the arbitration agreement, in practice signing the agreement is required if the individual wants to get the job or to obtain the cellphone, credit card, or other consumer product the business is selling. Mandatory arbitration agreements are legally enforceable and effectively bar employees or consumers from going to court, instead diverting legal claims into an arbitration procedure that is established by the agreement drafted by the company and required as a condition of employment or of doing business with it. [^colvin1]

Arbitration is often heralded as a cheaper, faster, and more efficient mechanism to resolve disputes. [In reality]({{< relref "problems" >}}), arbitration serves to eliminate meaningful recourse for violations of contract or of the law.
Expand Down
3 changes: 0 additions & 3 deletions content/docs/additional.md
Original file line number Diff line number Diff line change
Expand Up @@ -28,13 +28,10 @@ The footnotes in Giles - Doctrine are great!

189. See, e.g., Schnuerle v. Insight Commc’ns, Inc., 376 S.W.3d 561, 569, 573 (Ky. 2012) (“[U]pon application of Concepcion, we are now constrained to conclude that under contracts like the one now before us, which contain a class action waiver and also require disputes to be arbitrated under the FAA, the federal policy favoring arbitration preempts any state law or policy invalidating the class action waiver as unconscionable based solely upon the grounds that the dispute involves many de minimis claims which are, individually, unlikely to be litigated. . . . We, of course, yield as we must to the United States Supreme Court’s interpretation of federal law.”); Willis v. Debt Care, USA, Inc., No. 3:11-cv430-ST, 2011 WL 7121456, at *7–8 (D. Or. Oct. 24, 2011) (“[T]he vast majority of numerous, smallvalue claims . . . for statutory violations will go unprosecuted unless they may be brought as a class due to the high costs associated with pursuing individual claims. . . . This court is sympathetic to the [plaintiffs’] argument. Regrettably, AT&T forecloses many consumer class actions which may provide the only recovery for wronged individuals.”); Porreca v. Rose Grp., 2013 WL 6498392, at *1, *15 (E.D. Pa. Dec. 11, 2013) (complaining that the decision to uphold the class action ban was “unappetizing” and “lamentable”); Dean v. Draughons Junior Coll., Inc., 917 F.Supp.2d 751, 765 (M.D. Tenn. 2013) (“While required by the FAA, this result strikes the court as manifestly unjust and, perhaps, deserving of legislative attention. . . . [I]n cases such as the one presented here, requiring impoverished individuals to arbitrate could effectively prevent them from exercising their rights as state citizens.”).


https://buckleyfirm.com/sites/default/files/Buckley%20Sandler%20Special%20Alert%20-%20California%20Supreme%20Court%20Invalidates%20Widely%20Used%20Arbitration%20Provisions%20and%20Curtails%20the%20Scope%20of%20Proposition%2064.pdf


- See EEOC v. Luce, Forward, Hamilton, & Scripps, 303 F.3d 994 (9th Cir. 2002) (finding that refusal to hire applicant who refused to sign mandatory-arbitration agreement is not unlawful retaliation under Title VII of the Civil Rights Act of 1964), vacated in part and rev'd en banc in part by Nos. 00-57222 & 01-55321, 2003 U.S. App. LEXIS 20007 (9th Cir. 2003). The case overrules Duffield v. Robertson Stephens & Co., 144 F.3d 1182 (9th Cir. 1998).


- These agreements are sometimes obtained by placing mandatory-arbitration language in an employee handbook and including an agreement to be bound by its terms with a written receipt of the handbook. See O'Neil v. Hilton Head Hosp., 115 F.3d 272, 275 (4th Cir. 1997) (enforcing handbook's mandatory-arbitration clause). Contra Nelson v. Cyprus Bagdad Copper Corp., 119 F.3d 756, 762 (9th Cir. 1997) (holding that an employee, by signing receipt, did not knowingly agree to employee handbook's mandatory-arbitration clause).

## Not Yet Analyzed
Expand Down
4 changes: 0 additions & 4 deletions content/docs/references.md
Original file line number Diff line number Diff line change
Expand Up @@ -41,7 +41,6 @@ Regardless of the “objective” reality of the fairness or lack thereof of arb

This is really about collective bargaining agreements and arbitration provisions therein and thus somewhat out of scope for this page.


{{< details "Rubenstein - Assignment of Labor Arbitration" >}}
Stated somewhat differently, there should be a type of presumption, similar to that utilized under the Restatement (Second) of Contracts, in favor of assignment of labor arbitration and the right to appeal from arbitration absent express language in the collective bargaining agreement prohibiting it.
{{< /details >}}
Expand All @@ -53,7 +52,6 @@ Corporations view the gap in bargaining power between themselves and individuals
{{< /details >}}

Note: some of the most practical options for what it is likely to pass congress for fixing the [problems]({{< relref "/problems" >}})

1. Cain, R. M. (1988). Commercial Disputes and Compulsory Arbitration. The Business Lawyer, 44(1), 65–84. https://www.jstor.org/stable/40687165

{{< details "Cain - Commercial Disputes and Compulsory Arbitration - Conclusion" >}}
Expand Down Expand Up @@ -98,7 +96,6 @@ Southland and its progeny are the result of bad statutory interpretation and eve
It is hard to imagine that this game of high stakes musical chairs would have been a welcome outcome to the Reagan anti-lawsuit reformers. Much as the arbitration revolution does reduce lawsuits (the primary goal of the anti-lawsuit movement), it carries an externality that the reformers’ carefully crafted legislative agendas did not: namely, the cessation of common law development in entire areas of the law. This externality, all else being equal, is as likely to prejudice the interests of conservatives as it is liberals; it all depends on where you are when the music stops.
{{< /details >}}


1. Colvin, A. (2011). An Empirical Study of Employment Arbitration: Case Outcomes and Processes. https://hdl.handle.net/1813/75272
{{< details "Colvin - case outcomes - conclusion" >}}
On the closely debated issue of repeat player effects in arbitration, this study finds strong evidence of a repeat employer advantage and, more problematically, evidence of an advantage to employers in repeat employer-arbitrator pairings. The existence of an employer advantage in repeat employer-arbitrator pairings may reflect arbitral bias in some of these cases.
Expand Down Expand Up @@ -161,7 +158,6 @@ Mandatory employment arbitration has expanded to the point where it has now surp
1. [Overcoming the Latest Supreme Court Arbitration Decision](https://library.nclc.org/article/overcoming-latest-supreme-court-arbitration-decision)
1. CFPB Study Finds That Arbitration Agreements Limit Relief for Consumers. (2015). [Fact sheet]. Consumer Financial Protection Bureau. https://files.consumerfinance.gov/f/201503_cfpb_factsheet_arbitration-study.pdf


## Arbitration Provider Rules

1. Employment Arbitration Minimum Standards | JAMS Mediation, Arbitration, ADR Services. (2009, July 15). https://www.jamsadr.com/employment-minimum-standards/
Expand Down
3 changes: 0 additions & 3 deletions content/docs/rulemakings.md
Original file line number Diff line number Diff line change
Expand Up @@ -24,8 +24,6 @@ Title: Registry of Supervised Nonbanks that Use Form Contracts to Impose Terms a
- [Docket](https://www.regulations.gov/docket/CFPB-2023-0002)
- [Federal Register](https://www.federalregister.gov/documents/2023/02/01/2023-00704/registry-of-supervised-nonbanks-that-use-form-contracts-to-impose-terms-and-conditions-that-seek-to)



### CFPB-2016-0020 - 2016 attempt

- [Final Rule](https://www.federalregister.gov/documents/2017/07/19/2017-14225/arbitration-agreements)
Expand All @@ -41,7 +39,6 @@ Truth in Lending Act (Regulation Z); Loan Originator Compensation

https://www.federalregister.gov/documents/2013/02/15/2013-01503/loan-originator-compensation-requirements-under-the-truth-in-lending-act-regulation-z


## Centers for Medicare&Medicaid Services

### CMS-2017-0076-1010 - Medicare and Medicaid Programs: Revision of Requirements for Long Term Care Facilities: Arbitration Agreements
Expand Down
3 changes: 0 additions & 3 deletions content/docs/solutions.md
Original file line number Diff line number Diff line change
Expand Up @@ -17,7 +17,6 @@ There have been a few [carve outs]({{< relref "bills#statutes" >}}) to exempt sp
- it reduces the political pressure to eliminate consumer&employment arbitration.
- it does nothing to solve the underlying problems of arbitration. It merely reduces the sphere in which these problems occur.


# Overturning Southland Corp. v. Keating

Arbitration was intended to be a procedural rule for federal courts. In [Keating]({{< relref "arbitration_legal#southland-v-keating" >}}) the Supreme Court [erroneously]({{< relref "problems#supreme-court-errors" >}}) rules that arbitration is substantive. A simple fix here is for congress to solidify its intention explicitly.
Expand All @@ -42,12 +41,10 @@ The same norms and requirements of neutrality that apply to jurists should be im

Jeffrey Stempel also suggests a licence system to be qualified to serve on consumer or employment[^1] tribunals. Such a system would be a substantial change from the current system. It would likely be a net positive from today but this document does not explore the suggestion in depth. [^kangaroo3]


# Appellate review of arbitral decisions

Adjudication carries with it the right of appeal, including full review of the trial court’s application of the law (with limited review of the trial court’s factual determinations). Review of arbitration awards is considerably more limited. In litigation, review of trial court decisions can involve challenges to factfinding (evaluated under a “clearly erroneous” standard”), exercises of judicial discretion (evaluated under an “abuse of discretion” standard), and application of the law (evaluated by the appellate court’s “de novo” review of the law). Arbitration would be improved by replacement of the current deferential “manifest disregard” of law standard of review for arbitration awards with appellate review similar to that accorded trial court decisions. [^kangaroo4]


# Footnotes

[^realright1]: Ryan Schimmel. (2023). A Real Right to Litigate: Dismantling Mandatory Arbitration and the Restoring Justice for Workers Act. SETON HALL LEGISLATIVE JOURNAL, 47 pp 106A
Expand Down
3 changes: 3 additions & 0 deletions go.zsh
Original file line number Diff line number Diff line change
@@ -0,0 +1,3 @@
#!/usr/bin/env zsh

markdownlint -c .markdownlint.jsonc content

0 comments on commit b789315

Please sign in to comment.