This decision is ugly but a correct application of the FAA. Under the Unfair Contract Terms in Consumer Contracts Directive in the European Union, such an arbitration clause would be presumed to be unfair and therefore unenforceable. The USA urgently needs such a rule to be introduced as an amendment to the FAA.
The “Chamber-of-Commerce” court is (mis-)using the FAA as a vehicle to reinstate the Lochner regime of “freedom of contract” and “economic substantive due process,” which the plutocratic court of the turn of the 20th century confected as a means of suppressing socially progressive economic legislation.
They (the five bought-and-paid-for justices) can more easily “construe” a statute than they can undo an intervening 70+ years of constitutional doctrine. But the result is the same.
The decision is not a correct application of the FAA. It’s a correct application of the Chamber-of-Commerce Court’s intentional, judicially activist misreading of the FAA. The FAA was expressly intended only to govern commercial contracts, and to overcome the supposed bias of the judiciary against ADR provisions that ousted them of jurisdiction. It had nothing to do with employment or consumer contracts, and it had no application to the states.
The five bought-and-paid-for justices are using the FAA as a vehicle to reinstate the substance of the Lochner “economic substantive due process” regime. They can count on their right-wing co-ideologues in Congress to frustrate any efforts to amend the FAA to undo their expansive and insupportable interpretation of it.
This decision is ugly but a correct application of the FAA. Under the Unfair Contract Terms in Consumer Contracts Directive in the European Union, such an arbitration clause would be presumed to be unfair and therefore unenforceable. The USA urgently needs such a rule to be introduced as an amendment to the FAA.
The “Chamber-of-Commerce” court is (mis-)using the FAA as a vehicle to reinstate the Lochner regime of “freedom of contract” and “economic substantive due process,” which the plutocratic court of the turn of the 20th century confected as a means of suppressing socially progressive economic legislation.
They (the five bought-and-paid-for justices) can more easily “construe” a statute than they can undo an intervening 70+ years of constitutional doctrine. But the result is the same.
The decision is not a correct application of the FAA. It’s a correct application of the Chamber-of-Commerce Court’s intentional, judicially activist misreading of the FAA. The FAA was expressly intended only to govern commercial contracts, and to overcome the supposed bias of the judiciary against ADR provisions that ousted them of jurisdiction. It had nothing to do with employment or consumer contracts, and it had no application to the states.
The five bought-and-paid-for justices are using the FAA as a vehicle to reinstate the substance of the Lochner “economic substantive due process” regime. They can count on their right-wing co-ideologues in Congress to frustrate any efforts to amend the FAA to undo their expansive and insupportable interpretation of it.