Our new Lord Chancellor, Ken Clarke, is today calling for a reduction in prison numbers with a greater concentration on alternatives to custodial sentences. I am no criminologist and have no special insight into whether, in general, we are locking up unnecessarily large numbers of criminals for unnceceasarily long periods when perhaps the risks of reoffending can be addressed in other, less expensive, ways.
Readers of my blog will perhaps think me vindictive about motorists who kill cyclists, and it is true that my experiences on the road combined with my horror on finding far worse that has happened to others, does lead me to a firm conclusion that those who commit serious motoring crimes should be dealt with harshly. I believe that, neither because I am vindictive nor because I lack compassion for people who have sullied otherwise blameless lives with an isolated period of stupidity nor even because I think stern punishment will prevent the individual from committing another offence. It is purely because there needs to be a strong deterrent to bad driving so as to influence the behaviour of all motorists.
I am no anthropologist but I suspect as a species we have evolved to take very great care for our own preservation. The pain mechanism and, as we gained higher levels of consciousness, a disinclination to die have, I am sure, bestowed a huge evolutionary advantage. Likewise the urge, just as strong, to safeguard our children and with descending degrees of strength, our other relatives; those we know; members of our tribe and so on. However there has not been much of an evolutionary advantage to giving thought to the preservation or well being of complete strangers, and especially those of another tribe (with whom we appear to have evolved to be quite warlike). We have only in very modern times been more sensitive to, say, the bombing of enemy cities and have set up International War Crimes Tribunals and the like to deter the worst excesses of war.
You may, by now, feel that I have gone completely off the point. However my experience on the roads leads me to feel that to some motorists, because I am on a bicycle, I am not just a complete stranger but worse am a member of a different tribe. Even if there is no active hostility (and sometimes there is!) I just do not matter.
If in a motor/bicycle collision the motorist were at significant risk of suffering severe trauma I have no doubt there would be fewer such collisions. Why? Because the brain has been fine tuned by millions of years of evolution to take extreme care for self-preservation. However the motorist is virtually immune from death or other trauma when his car runs down a bicycle. If only one person could survive a motor/bicycle collision it would in many ways be fairer if that were the innocent party, but that cannot be arranged. The best our imperfect legal system can do is to impose a tough sanction. Once the brain thinks 'If I do not notice or pass this cyclist with care and run him down, I may end up in prison' then, at least, we kick start something in the brain which chimes with powerful instincts of self-preservation.
Tough sentencing in these circumstances is, in my view, likely to save lives and is therefore required. Whilst looking at non-custodial penalties though, periods of disqualification need to be looked at again. Parliament has authorised Courts to ban drivers for life but they shy away from long driving bans for fear that they may lead to non-observance of the ban.
The Road Lobby in action again
Lord Dubs, chairman of the Road Safety Foundation this morning hosted a reception in the House of Lords for MPs and road safety practitioners unveiling a report 'Saving Lives for Less' which maps the relative safety of motorway and 'A' roads and recommends the improvement of major roads for safety reasons. It all sounds highly laudatory and I am sure the sponsors of the event, the Refined Bitumen Association, are motivated by philanthropy.
There are two problems though; first the Transport Budget is under severe presure and any money devoted to improving Motorway and 'A' roads will necessarily diminish even further the money available to maintain local roads, fill potholes, improve cycling facilites, improve the attractiveness of trains and other public transport and the many other demands on the transport budget.
Second, the problem of risk compensation. If you improve the roads people will drive faster or otherwise modify their behaviour to restore the risk/convenience balance. You may achieve a reduction in accidents by making such roads so fast that they are a complete 'no-go' area for cyclists and pedestrians in effect turning all such roads into motorways.
Improvement in major roads for motorists to try and overcome, rather than tackle at source, poor motoring skills seems to me to be a questionable use of limited resources.
I would rather a little bit of money and care was put into roads like this (The Causeway, Staines) where a skinny cycle lane far too narrow to satisfy natioanl road planning guidelines has now been turned by recent road resurfacing (concentrating it seems on the part of the road used by cars and ignoring that used by bicycles) into an unattractive gutter.
There are two problems though; first the Transport Budget is under severe presure and any money devoted to improving Motorway and 'A' roads will necessarily diminish even further the money available to maintain local roads, fill potholes, improve cycling facilites, improve the attractiveness of trains and other public transport and the many other demands on the transport budget.
Second, the problem of risk compensation. If you improve the roads people will drive faster or otherwise modify their behaviour to restore the risk/convenience balance. You may achieve a reduction in accidents by making such roads so fast that they are a complete 'no-go' area for cyclists and pedestrians in effect turning all such roads into motorways.
Improvement in major roads for motorists to try and overcome, rather than tackle at source, poor motoring skills seems to me to be a questionable use of limited resources.
I would rather a little bit of money and care was put into roads like this (The Causeway, Staines) where a skinny cycle lane far too narrow to satisfy natioanl road planning guidelines has now been turned by recent road resurfacing (concentrating it seems on the part of the road used by cars and ignoring that used by bicycles) into an unattractive gutter.
Gang-style art theft: Caravaggio recovered from criminal group
Ukrainian and German police recovered a Caravaggio that had been stolen from a museum in Odessa in 2008. “The Taking of Christ” was found in the hands of a criminal group that deals with high value theft. Such reports reinforce our knowledge that organized criminal activity is involved with art crime. Authorities must aggressively uncover the relationships between criminal networks and art crime in order to combat this large, global problem that funds other crimes. Today's recovery by police is welcome news.
Relational Retaliation: More Than A Mouthful, Another Step Forward?
Jon Hyman at Ohio Employer's Law Blog has been all over the reporting of the 6th Circuit decision of Thompson v. North American Stainless, whose latest iteration at that level was an en banc rejection of a retaliation claim brought by an employee fired three weeks after his fiancee' filed a charge of discrimination against the same company. Since he himself did not engage in any protected activity, the en banc court overturned a panel decision which had held he was within the zone of protection of the anti-retaliation provisions.
Jon is understandably concerned that the Supreme Court granted certiorari yesterday in this case, noting in what if anything is an understatement that "this Court has proven itself favorable to employee rights in retaliation claims." Check out his post. Supreme Court agrees to hear associational association retaliation claim, for links to his past coverage and his promise to follow this one through next term's argument and decision.
However, this is ultimately a question of statutory construction, which calls to mind Jackson v. Birmingham Board of Education, where the dispute was whether Title IX prohibited retaliation, although there was no anti-retaliation provision in the statute itself. In a 5-4 decision, the court's opinion finding retaliation was prohibited was authored by Justice O'Connor. Significantly one of the dissenters was Justice Anthony Kennedy.
Although that was only five years ago, there will be four new justices on the Court that decides North American Stainless, Justices Roberts, Alito, Sotomayor and presumably Kagan. Substitute Sotomayor and Kagan for Souter and Stephens, Roberts for Rehnquist and Alito for O'Connor and if Kennedy's vote had remained the same Jackson would have gone the other way. So maybe North American Stainless will be better for employers than one might think on first blush.
Jon is understandably concerned that the Supreme Court granted certiorari yesterday in this case, noting in what if anything is an understatement that "this Court has proven itself favorable to employee rights in retaliation claims." Check out his post. Supreme Court agrees to hear associational association retaliation claim, for links to his past coverage and his promise to follow this one through next term's argument and decision.
However, this is ultimately a question of statutory construction, which calls to mind Jackson v. Birmingham Board of Education, where the dispute was whether Title IX prohibited retaliation, although there was no anti-retaliation provision in the statute itself. In a 5-4 decision, the court's opinion finding retaliation was prohibited was authored by Justice O'Connor. Significantly one of the dissenters was Justice Anthony Kennedy.
Although that was only five years ago, there will be four new justices on the Court that decides North American Stainless, Justices Roberts, Alito, Sotomayor and presumably Kagan. Substitute Sotomayor and Kagan for Souter and Stephens, Roberts for Rehnquist and Alito for O'Connor and if Kennedy's vote had remained the same Jackson would have gone the other way. So maybe North American Stainless will be better for employers than one might think on first blush.
Legal Update - Summer 2010
In the criminal courts the treatment of those who have killed cyclists has remained patchy. We all experience irrational road rage from time to time from motorists. The unfortunate cyclist, Paul Webb, was deliberately run down by a motorist, Sean Fitzgerald, apparently in retaliation for a damaged wing mirror. Mr Webb died of his injuries. Fitzgerald claimed this was an accident. Unhappily for Fitzgerald, but happily for justice, two workmen in a nearby driveway heard the engine noise followed by the collision and the jury rejected Fitzgerald's defence. Fitzgerald was convicted of murder, sentenced to life and will serve a minimum of 13 years. This is a first, so far as I am aware, of a murder conviction for a motorist who has run down a cyclist. I have an uneasy feeling that Fitzgerald is far from the first, or last, motorist to attack a cyclist in this way but if the cyclist is dead, it is often difficult to challenge the motorist's version of events.
44. In my judgment, although it is illegal for cyclists to use the pavement (unless it is specifically sanctioned by a local authority for shared use), when weighing up the danger to himself (cp danger to pedestrians) it was a reasonable decision by the Claimant to ride on the pavements in this area rather than the road in the context of the duty of care owed to himself to take reasonable care for his own safety whilst cycling. In my judgment, although illegal and potentially negligent in any action vis a vis a pedestrian, it was not “blameworthy” in terms of negligence in contributory negligence."
So there we have it, judicial confirmation that the facilities for cyclists are so poor that they can reasonably decide to travel illegally on the pavement. I suspect Mr Kotula was wearing a helmet (because the report does not state otherwise) but there is also here further ammunition to use against those who argue that a cyclist is guilty of contributory negligence if he does not wear a helmet:
"50. In any event, even if contributory negligence had been established here, the relative culpability and causative potency of the alleged negligent acts of the Defendants and the Claimant under the principles in Davies v Swan Motor Co. (Swansea) Ltd. [1949] 2KB 291 were such that those of the Defendants were overwhelming: their negligence potentially threw users of the pavement into the path of vehicles on the carriageway; whereas the Claimant was rightly or wrongly using the pavement in the first place to try and avoid uncomfortable proximity with those very vehicles."
In the other civil case, which also came before HHJ Brown, the widow of Ninian Donald, claimed damages against the driver of a skip lorry that crushed Mr Donald as it turned left at traffic lights in Hackney in May 2007. The Defendant accepted 75% of the blame for the accident and damages were agreed, and approved by the judge, on that basis. This is a tragically common type of incident especially in London. Interestingly at the inquest the investigating police had no hesitation in heaping the entirety of the blame on Mr Donald.
I have commented before on the adequacy of police and coroners' investigations into the deaths of cyclists. Earlier this week I met up with a lot of lawyers, medics, bereaved and others interested in the legal investigations of death. It strikes me that there is a hierarchy of deaths; sterling and thorough work (not least by Coroners) goes into the investigation of deaths in custody (including those detained by UK forces abroad), deaths of soldiers, deaths in the workplace. The public funds, and rightly so, investigation and legal representation of the highest quality to take on such cases. Typically those involved in the coronial system at this level are favourably impressed. Relatives of the victims of Road Traffic Collisions are almost universally far less impressed. My own explanation for this is that our society is car dominant. Deaths in a factory or building site or an unnatural death whilst detained by the State are a disgrace and should not happen: deaths on the road, well that's the inevitable price we pay for enjoying our motor vehicles. The unnatural violent death of any individual is equally important. I wish we could move up the list of priorities at least those vulnerable road users who pay the ultimate price for taking up the Government's exhortations to walk or cycle.
In my last update I described the fate of Katie Hart (who ran down and killed Major Gareth Rhys-Evans) and described her prison sentence as 'inevitable'. It appears I need to revise my idea of what is inevitable. Yesterday Georgina Mills walked free from Exeter Crown Court following her conviction of causing death by dangerous driving. Last September she had run down two cyclists on the A30 in Tedburn St Mary. The cyclists were on a long distance ride for charity and one of them, Simon Evans, died from his injuries. Mills admitted the charge of causing death by dangerous driving (a factor that differentiates her case from Hart) and expressed remorse. She was ordered to do unpaid community work and was (like Hart) disqualified from driving for just two years.
Mills had apparently been distracted for two seconds by a spider. Presumably if you take your eyes off the road to deal with a spider you slow down, but even if Mills continued at 60 mph and hit the cyclists at the very end of the two seconds, she would have been only 53 metres from the pair when she first took her eyes off the road. I do not know the precise location of the collision but Google Earth reveals this to be a straight wide dual carriageway.
53 metres is certainly less distance than the nearest car is away in this Google Streetview. It is not, in my view, very helpful to characterise this type of accident as 'momentary inattention' since that can be applied almost universally to road traffic collisions. I strongly suspect that the cyclists must have been there to be seen before the motorist was distracted by the spider. The underlying problem is that she did not take in, or react appropriately, to the presence of cyclists on the road. The brain ought to have already started to process the achievement of the task ahead, namely to overtake two cyclists in a safe way. Slowing and planning a move to the offside should already have been happening. To add to the horror, the surviving cyclist was able to give evidence that both bicycles had been to the nearside of the rumble strip which, at least superficially, may appear to be the safest place to be. This is wholly understandable and obviously no scintilla of blame could possibly be ascribed to the cyclists. I have many times stated on these pages how I deal with dual carriageways
and sometimes those I am with (and certainly some motorists) think me mad - but I would rather the motorist's brain processed "What is that nutter doing in the middle of my lane?" than processed nothing at all. Ultimately if the driver kept coming I would have been onto the grass verge. There is no safety at the side of the road; some motorists will act as though you are not there and you cannot tell at the edge whether they are going to hit you or pass you until it is too late.
and sometimes those I am with (and certainly some motorists) think me mad - but I would rather the motorist's brain processed "What is that nutter doing in the middle of my lane?" than processed nothing at all. Ultimately if the driver kept coming I would have been onto the grass verge. There is no safety at the side of the road; some motorists will act as though you are not there and you cannot tell at the edge whether they are going to hit you or pass you until it is too late.
Of course this strategy requires looking behind almost more than looking ahead and is incompatible with Time Trialing. It pains me to report that there has been yet another death of a Time Trialist, this time on the A419 dual carriageway near Swindon. At about 7.45 pm on June 12th Alex Anderson was struck by a car and later that night died in hospital. Traffic is reported to have been exceptionally light, perhaps due to a football match that England was playing at the time in South Africa. I will be keeping an eye out for any proceedings that come out of this but make no further comment now.
In the civil courts there have been two recent cases of note. In Kotula v EDF & others on 6th June 2010 HHJ Simon Brown (sitting as a deputy High Court Judge) gave a Judgment in favour of a cyclist who had suffered catastrophic injuries when he fell into the road under a lorry whilst trying to negotiate some poorly sited barriers erected by the Defendant companies around some roadworks on the pavement. The Defendants alleged that Mr Kotula was partly to blame and, as part of their argument, asserted that he had been riding his bicycle unlawfully on the pavement. The Judge found that Mr Kotula (a policeman incidentally) had probably been pushing his bike through the roadworks though he did habitually use the pavements for part of his commute. However the Judge added:
"43. In my judgment, this piece of road was dangerous for all but the most experienced, traffic fast, confident and dominant of cyclists i.e. the „serious‟ cyclist as Mr Ibbotson [an expert witness] puts it, as opposed to the ordinary prudent cyclist using a cycle to go to work encumbered with his cycle rucksack.
44. In my judgment, although it is illegal for cyclists to use the pavement (unless it is specifically sanctioned by a local authority for shared use), when weighing up the danger to himself (cp danger to pedestrians) it was a reasonable decision by the Claimant to ride on the pavements in this area rather than the road in the context of the duty of care owed to himself to take reasonable care for his own safety whilst cycling. In my judgment, although illegal and potentially negligent in any action vis a vis a pedestrian, it was not “blameworthy” in terms of negligence in contributory negligence."
So there we have it, judicial confirmation that the facilities for cyclists are so poor that they can reasonably decide to travel illegally on the pavement. I suspect Mr Kotula was wearing a helmet (because the report does not state otherwise) but there is also here further ammunition to use against those who argue that a cyclist is guilty of contributory negligence if he does not wear a helmet:
"50. In any event, even if contributory negligence had been established here, the relative culpability and causative potency of the alleged negligent acts of the Defendants and the Claimant under the principles in Davies v Swan Motor Co. (Swansea) Ltd. [1949] 2KB 291 were such that those of the Defendants were overwhelming: their negligence potentially threw users of the pavement into the path of vehicles on the carriageway; whereas the Claimant was rightly or wrongly using the pavement in the first place to try and avoid uncomfortable proximity with those very vehicles."
In the other civil case, which also came before HHJ Brown, the widow of Ninian Donald, claimed damages against the driver of a skip lorry that crushed Mr Donald as it turned left at traffic lights in Hackney in May 2007. The Defendant accepted 75% of the blame for the accident and damages were agreed, and approved by the judge, on that basis. This is a tragically common type of incident especially in London. Interestingly at the inquest the investigating police had no hesitation in heaping the entirety of the blame on Mr Donald.
I have commented before on the adequacy of police and coroners' investigations into the deaths of cyclists. Earlier this week I met up with a lot of lawyers, medics, bereaved and others interested in the legal investigations of death. It strikes me that there is a hierarchy of deaths; sterling and thorough work (not least by Coroners) goes into the investigation of deaths in custody (including those detained by UK forces abroad), deaths of soldiers, deaths in the workplace. The public funds, and rightly so, investigation and legal representation of the highest quality to take on such cases. Typically those involved in the coronial system at this level are favourably impressed. Relatives of the victims of Road Traffic Collisions are almost universally far less impressed. My own explanation for this is that our society is car dominant. Deaths in a factory or building site or an unnatural death whilst detained by the State are a disgrace and should not happen: deaths on the road, well that's the inevitable price we pay for enjoying our motor vehicles. The unnatural violent death of any individual is equally important. I wish we could move up the list of priorities at least those vulnerable road users who pay the ultimate price for taking up the Government's exhortations to walk or cycle.
FBI Art Program Presentation in NYC
Theft, Fraud, and Forgery: Cultural Property Crime in the U.S. and the FBI Art Theft Program
When: Thursday, July 22nd, 2010, 2:00 - 5:00 pm
Where: Wachtell, Lipton, Rosen & Katz, 51 West 52nd Street, New York, New York 10019
Description:
Art crime is a multi-billion dollar endeavor that affects collectors, dealers, galleries, museums and artists world-wide. The FBI has investigated these crimes for many years, and five years ago established the Art Crime Team to develop a cadre of Special Agents trained specifically in art crime investigations. Although spectacular thefts from major museums capture the headlines, most art thefts in the U.S. are residential burglaries and art fraud is even more rampant. This talk will cover federal jurisdiction, elements of the U.S. criminal statutes, international treaties and conventions, as well as case studies of recent investigations. Basic strategies for protection of collections will also be covered.
Lecturer:
Bonnie Magness-Gardiner
Bonnie Magness-Gardiner is Manager of the Art Theft Program at the Federal Bureau of Investigation. Headquartered in Washington, D.C., the Art Theft Program was established after the looting of the Baghdad Museum in 2004. Dr. Magness-Gardiner coordinates the work of 13 special agents assigned to various geographic regions, and manages the National Stolen Art File. She received her Ph.D. in Near Eastern Archaeology from the University of Arizona. After teaching archaeology for five years, she entered government service as program manager for the Archaeology Program at the National Endowment for the Humanities then became a program manager for the American Memory Project at the Library of Congress. For eight years she was the Senior Cultural Property Analyst for the Department of State, implementing the 1970 UNESCO Convention against illicit traffic in cultural property. She also served as the program manager for cultural heritage restoration projects in Iraq. She has been with the FBI since 2005.
Registration Fees:
VLA Member Attorney or Arts Professional: $200
Non-Member Attorney or Arts Professional: $250
Attendees must register before July 20th and be on the security list to attend. Seating is limited to 30 people. (There is an additional $25 fee if you register after July 15th.)
*3.0 CLE credits, 1 Professional Practice, 1 Skills and 1 Ethics (Approved for Non-Transitional and Transitional Attorneys)
To register and for more information, please see this registration form, or register via phone at 212.319.2787 x1. For more information please contact VLA's Kathleen Mallaney at 212.319.2787 x12, or via e-mail at kmallaney@vlany.org.
This event is organized and sponsored by Volunteer Lawyers for the Arts.
When: Thursday, July 22nd, 2010, 2:00 - 5:00 pm
Where: Wachtell, Lipton, Rosen & Katz, 51 West 52nd Street, New York, New York 10019
Description:
Art crime is a multi-billion dollar endeavor that affects collectors, dealers, galleries, museums and artists world-wide. The FBI has investigated these crimes for many years, and five years ago established the Art Crime Team to develop a cadre of Special Agents trained specifically in art crime investigations. Although spectacular thefts from major museums capture the headlines, most art thefts in the U.S. are residential burglaries and art fraud is even more rampant. This talk will cover federal jurisdiction, elements of the U.S. criminal statutes, international treaties and conventions, as well as case studies of recent investigations. Basic strategies for protection of collections will also be covered.
Lecturer:
Bonnie Magness-Gardiner
Bonnie Magness-Gardiner is Manager of the Art Theft Program at the Federal Bureau of Investigation. Headquartered in Washington, D.C., the Art Theft Program was established after the looting of the Baghdad Museum in 2004. Dr. Magness-Gardiner coordinates the work of 13 special agents assigned to various geographic regions, and manages the National Stolen Art File. She received her Ph.D. in Near Eastern Archaeology from the University of Arizona. After teaching archaeology for five years, she entered government service as program manager for the Archaeology Program at the National Endowment for the Humanities then became a program manager for the American Memory Project at the Library of Congress. For eight years she was the Senior Cultural Property Analyst for the Department of State, implementing the 1970 UNESCO Convention against illicit traffic in cultural property. She also served as the program manager for cultural heritage restoration projects in Iraq. She has been with the FBI since 2005.
Registration Fees:
VLA Member Attorney or Arts Professional: $200
Non-Member Attorney or Arts Professional: $250
Attendees must register before July 20th and be on the security list to attend. Seating is limited to 30 people. (There is an additional $25 fee if you register after July 15th.)
*3.0 CLE credits, 1 Professional Practice, 1 Skills and 1 Ethics (Approved for Non-Transitional and Transitional Attorneys)
To register and for more information, please see this registration form, or register via phone at 212.319.2787 x1. For more information please contact VLA's Kathleen Mallaney at 212.319.2787 x12, or via e-mail at kmallaney@vlany.org.
This event is organized and sponsored by Volunteer Lawyers for the Arts.
The Potential Impact of Today's Supreme Court's 5-4 Decision on Arbitrability
It is never too much a surprise when the Supreme Court reverses the 9th Circuit, nor in recent years is it a surprise when the Court hands down a decision favoring arbitration of disputes, even in employment law matters. In a narrow sense, that is the substance of today's 5-4 decision in Rent-A-Center, West, Inc. v. Jackson, (S.Ct. 6/21/10) [pdf].
The dispute was a procedural one, who has the power to determine the initial question of arbitrability in a particular set of circumstances, the court or the arbitrator. In one sense, all the Supreme Court did was lay down the guideline for how the challenge should be made if the party wishes the Court to be the interpreter. If that were the only consequence, it would be an important case for practitioners dealing with these issues, but at least the applicable law would be more clear and parties could make their arguments accordingly.
If that is the only result of today's ruling, then at least to me, this will ultimately be a rather inconsequential decision. In the short term, this employer will have won a victory (although not on the merits of the case) and parties will adapt their positions going forward to comply with the holding.
However, rather than being another good day for employers in the Supreme Court, which is much rarer than most believe, it is quite possible that employers may rue the day that Justice Kennedy cast his lot with Justices Scalia (the author of the opinion), Thomas, Roberts and Alito on this case.
I can almost guarantee, in fact it may very well occur before I finish drafting this post, that there will be a hue and outcry by Senator Leahy and others that the Supreme Court has dealt yet another vicious and erroneous blow to employee rights and that the only recourse is swift and sure Congressional action. (If that occurs, I think most objective commentators will agree that it a tremendous overstatement of what really happened today.)
The problem for employers is that the swift and sure Congressional action if it should come, is unlikely to merely undo Rent-A-Center. It is much more likely to be the enactment of the Arbitration Fairness Act, which notwithstanding what you may hear, will be the end of arbitration as a means of dispute resolution in the employment setting except for collective bargaining agreements.
I am not sure what term one uses to describe something that is far worse than a mere pyrrhic victory, but if the result of today's decision is the passage of the Arbitration Fairness Act , then the employer community will certainly need one.
Update: The first linkage (at least that I have seen to the AFA):
If you have an interest in retaining arbitration as part of a dispute resolution program, it is high time to be making sure your senators and representatives are aware of your position.
The dispute was a procedural one, who has the power to determine the initial question of arbitrability in a particular set of circumstances, the court or the arbitrator. In one sense, all the Supreme Court did was lay down the guideline for how the challenge should be made if the party wishes the Court to be the interpreter. If that were the only consequence, it would be an important case for practitioners dealing with these issues, but at least the applicable law would be more clear and parties could make their arguments accordingly.
If that is the only result of today's ruling, then at least to me, this will ultimately be a rather inconsequential decision. In the short term, this employer will have won a victory (although not on the merits of the case) and parties will adapt their positions going forward to comply with the holding.
However, rather than being another good day for employers in the Supreme Court, which is much rarer than most believe, it is quite possible that employers may rue the day that Justice Kennedy cast his lot with Justices Scalia (the author of the opinion), Thomas, Roberts and Alito on this case.
I can almost guarantee, in fact it may very well occur before I finish drafting this post, that there will be a hue and outcry by Senator Leahy and others that the Supreme Court has dealt yet another vicious and erroneous blow to employee rights and that the only recourse is swift and sure Congressional action. (If that occurs, I think most objective commentators will agree that it a tremendous overstatement of what really happened today.)
The problem for employers is that the swift and sure Congressional action if it should come, is unlikely to merely undo Rent-A-Center. It is much more likely to be the enactment of the Arbitration Fairness Act, which notwithstanding what you may hear, will be the end of arbitration as a means of dispute resolution in the employment setting except for collective bargaining agreements.
I am not sure what term one uses to describe something that is far worse than a mere pyrrhic victory, but if the result of today's decision is the passage of the Arbitration Fairness Act , then the employer community will certainly need one.
Update: The first linkage (at least that I have seen to the AFA):
from a National Law Journal article discussing today's decision.Public Citizen's Gupta noted that the House Judiciary Committee on June 23 is scheduled to consider the proposed Arbitration Fairness Act. "The timing is interesting," he said, adding, "The Court and Congress are moving in very different directions. I think this decision will help provoke a legislative response. It really is an attempt by the Court to take away the last safety valve available to consumers and employees."
2nd Update: I am not quite sure when Senator Patrick Leahy's statement on today's case was released, so I can't say how accurate I was on the timing, but I did nail the content pretty well:
Today, five members of the Supreme Court struck a blow to our nation’s civil rights laws and the protections that American workers have long enjoyed under those laws.And while there is no mention in the press release about the pending Arbitration Fairness Act, it doesn't take much reading between the lines to see where Senator Leahy stands:
This is a big issue, although it may not seem so to the general public. Unfortunately, that means it may be easier than some other legislation to slide by under the radar.There is no rule of law in arbitration. There are no juries or independent judges in the arbitration industry. There is no appellate review. There is no transparency. And as a result of today’s divisive ruling, there will likely be no justice for millions of American workers and their families. The courthouse doors have simply been closed to them. Today’s opinion also gives big business a disincentive to treat their employees fairly and will no doubt lead to virtually all companies requiring their employees to sign one-sided arbitration agreements as a condition of employment.
If you have an interest in retaining arbitration as part of a dispute resolution program, it is high time to be making sure your senators and representatives are aware of your position.
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