Saturday, October 24, 2009

Is Arbitration The Appropriate Forum For Rape?

The Truth About the Franken Amendment

* Posted October 16th, 2009 at 4.01pm in Enterprise and Free Markets, Rule of Law.

When a disgruntled employee files a lawsuit that goes to court his employer must pay tens or hundreds of thousands of dollars in legal fees. Even if the courts reject the allegation as frivolous employers must still pay the lawyers. That allows unscrupulous employees to use threat of going to court to win large settlements from their bosses for baseless claims. Guilty or not guilty, the employer loses money that could have been used to expand operations and hire more workers.

Consequently many employers are turning to alternative dispute resolution methods that cost far less. Many contracts require employers and employees to take legal disputes to arbitration. There an outside arbitrator evaluates the claims and imposes remedies. Arbitrators award employees fair damages in cases of actual injustice while quickly dispensing with merit-less nuisance suits. Instead of legal bills running into the hundreds of thousands of dollars, however, arbitration usually costs only a few thousand dollars. That saves employers the money they need to create jobs while giving rogue employees no leverage to win undeserved settlements. Arbitration protects employees’ legal rights while keeping the economy moving. Everybody wins. Except the trial lawyers.

They like high legal bills. So they hate arbitration. It takes away their customers. The trial lawyer bar has long lobbied Congress to ban arbitration. They want to guarantee that employers accused of wrongdoing must always settle (with the help of attorneys) or go to court and really rack up their legal costs. Banning arbitration protects trial lawyers six-and-seven-figure lifestyles, but it sucks money out of businesses that would otherwise create jobs.

Last Tuesday the Senate gave the trial lawyers an enormous win. It passed an amendment offered by Al Franken (D-MN) that bars any contractor with the Department of Defense from using arbitration.

The putative justification for this is a horrific case in which Jamie Jones, a Halliburton employee in Iraq, who alleges that she was gang-raped in her bedroom by her co-workers. She claims that when she reported the attack to her supervisors, they placed her in a container under armed guard and did not let her leave or call her family for several days. Halliburton HR officials allegedly told her to “get over it” or lose her job, and she asserts that Halliburton attempted to short circuit her lawsuit by sending the case to arbitration.

Given that Franken chose to highlight her case, you might assume that the courts ruled in Haliburton’s favor, and that she was not able to bring her claims in court instead of to an arbitrator. But then you would be wrong. The courts ruled that Halliburton could not arbitrate her claims of assault and battery, intentional infliction of emotional distress, negligent hiring, retention and supervision of employees involved in the assault, and false imprisonment.

So why did Franken offer his amendment to ban arbitration? And why an amendment that applies to every company with contracts with the DOD, not just Halliburton? Because it has little to do with ensuring that Jamie Jones gets justice. The courts have already allowed Jones’ lawsuit to go forward. This amendment is a move towards the plaintiff bar’s longstanding goal of banning dispute arbitration. But the allegations in this case are so egregious that it makes it difficult for Members of Congress to stand up for the rights of law-abiding employers.

Making it easier for lawyers to take their cut appeals to lawyers. But it comes at the expense of job creation. The money lawyers take undercuts healthy businesses and discourages new entrepreneurs from starting their own small businesses. Why would anyone start a business if they expected to spend most of the money they earn on legal bills? Why take that risk? Congress should not let the trial bar pre-judge America’s job creators guilty as charged.

* Author: James Sherk
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October 16, 2009 Ben Porter writes:

Actually, the description of the amendment does not disallow the use of arbitration in all or even most cases. As said, Jamie Jones was allowed to take her case to court, but only after years of litigation pursuing the RIGHT to bring her case to court. This court decision is not universal, and Franken’s amendment seeks to make the results of that decision policy. As Franken said, “The amendment I’m offering today seeks to narrowly target the most egregious violations”
October 16, 2009 Judy writes:

I have a question: Would this law have any effect on provisions of the “card check” bill, in which the “government” would be the arbitrator in union contract disputes? I would say it would, but alas, I’m neither a lawyer or judge. It would be a great thing if it did have an effect on the legislation on that horrendous bill. Just wondering.
October 16, 2009 Loren Meck, Simi Valley, CA writes:

The Franken amendment prevents contractors from requiring arbitration for “any tort related to or arising out of sexual assault or harassment, including assault and battery, intentional infliction of emotional distress, false imprisonment, or negligent hiring, supervision, or retention.” I agree with Mr. Sherk that the bill as passed is subject to abuse by employees, because “sexual harassment” can be alleged in a wide variety of circumstances. Too bad Halliburton fought so hard trying to keep Ms. Jones’ case out of the courts; otherwise the Senate never would have passed this bill.
October 16, 2009 Leon, Durango, CO writes:

Here is another example of Liberal/Progressive fascism (perfect because Franken stole his election). Arbitration can benefit the victim as well as the Business by making Justice more possible for either party. It should be a choice of the parties involved not a fiat from above. Going to Court doesn’t improve your chances because these days the judges do whatever they want. They don’t even know the law (I am not kidding). I expect plenty more atrocity from Franken, and Al? It isn’t funny.
October 16, 2009 Bobbie Jay writes:


October 16, 2009 Don Gorga, New Jersey writes:

The most simple answer is that if the company does not want to put itself into a situation that it does not find equitable, than the company should simply NOT seek government contract. If NO companies will bid on or take government contracts how long do you thing this would stand?
In the meantime, special interest groups, ALL special interest groups should be BANNED by law from having any contact with elected officials.
October 16, 2009 Todd Kelly, Houston Texas writes:

Actually, the comment that “arbitration protects employees legal rights” could not be further from the truth. In fact, Arbitration is conducted in secret, it is binding (and therefore not appealable - even when the law is blatantly disregarded), it is signed without the benefit of counsel (though the company’s attorneys worked tirelessly to create it), it is sold as a “quick, inexpensive, and effective way to resolve conflicts.” The truth is, however, that it is only inexpensive for the corporations. That is why corporations force it upon consumers and employees - yes, FORCE it. If arbitration were fair, as this article seems to argue, then why is it that only the individuals ever try to get out of arbitration once they have been properly advised? If it is so fair - why does it have to be forced?

Arbitrators that rule in favor of individuals run the risk of being non-selected for arbitration by the company the next time. Arbitrators know this. Arbitrators like to eat, too. They know who is going to be before them on a repeated basis and who is there for a one time deal. Their natural bias is for the large conglomerate, who wants to dispose of the dispute quickly, quietly, and with minimal cost. There was a system in old England that touted the same virtue. It was called the Star Chamber. It’s back!

We formed a Constitution to avoid having people face such unequal justice in the face of power. We have sent countless young men and women into the face of battle and to their graves to defend that principle. Yet, we give it up so easily when large corporations tell us that it is the right thing to do. Do not be fooled - this is corporate America insulating itself from liability, and making sure that it is - above the law.
October 16, 2009 mark writes:

Actually the 5th Circuit affirmed that those claims “related to [her] employment” or constitute personal injury “arising in the workplace” must be arbitrated and those that are not related to her employment can go into civil court. Arguably if Haliburton had made the employment contract even more restrictive, none of the claims could have gone to court.

So what? you might say. The Bush administration gave contractors, such as Haliburton, immunity from criminal prosecution in Iraq. Since the alleged crimes occurred in Iraq, Iraqi courts would have had jurisdiction - which is why U.S. courts have not prosecuted.

The obvious issue is: what does the “no” vote of the 30 Republican senators say about their priorities, judgment and loyalties?

It’s one thing to require arbitration for matters like pay and discrimination, its quite another matter to require allegations of responsibility for rape to be decided before an in-house arbitrator. In the Haliburton case, they choose the arbitrator, the rules of evidence, access to discovery and types of damages available. In cases taken before an arbitrator at Haliburton, 80% were found to be without any merit by the homey arbitrators.

Also, in arbitration, there is usually very limited discovery. Without adequate discovery there is no way the woman who was allegedly raped would get fair access to the evidence needed to present her case. Even if she did, and even if the arbitrator ruled in her favor (which would be unlikely), there would be no punitive damages available to her, as there are in civil court.

Also, there is no appeal of an arbitrator’s decision, as there is in civil courts. Lastly, the reports of destroying evidence and threats made against the woman by Haliburton further make arbitration an inadequate and unjust process in these circumstances.

Since the equities of Franken’s amendment so clearly weighed in its favor, the issue is: why did the 30 Republican senators vote against it? The obvious inference to be drawn is that the Republican senators’ loyalty to large corporations, such as Haliburton, is greater than requiring justice for a woman who was horribly gang-rapped. And, I suppose, it raises the question - if Republicans think it is OK to outlaw federal contracts with ACORN, why is it wrong to require federal contractors to permit access to civil courts in the case of rape? The federal gov’t has placed conditions on federal contracts for many years and the U.S. Supreme court has ruled that to do so is constitutional and within its power.
October 16, 2009 Chrisfs,CA writes:

Heritage’s take is rather despicable. The Franken amendment is written rather narrowly to include only claims of sexual assault, assault and battery, intentional infliction of emotional distress, and negligent hiring, retention and supervision. And it only restricts those to firms doing business with the Federal govt.
Why every firm doing business with the govt and not just Haliburton??
Because that is incredible bad piecemeal lawmaking. Preventing victims of serious and horrid crimes from seeking their day in an actual court is a bad policy regardless of which company does it.
Why should the government single out Haliburton?
October 16, 2009 Ken, Florida writes:

Since very few people actually bother to research Congressional legislation, I’ve decided to post the exact text of the Franken Amendment to the Defense Appropriations Bill of the 111th Congress of the United States. For those of you who see this as a big win for lawyers and a loss for legitimate business, I have yet to see any argument against this amendment to the Senate bill which truly appeals to reason.

Franken Amendment to the 2010 Defense Appropriations Bill:
Sec. 8118. (a) None of the funds appropriated or otherwise made available by this Act may be used for any existing or new Federal contract if the contractor or a subcontractor at any tier requires that an employee or independent contractor, as a condition of employment, sign a contract that mandates that the employee or independent contractor performing work under the contract or subcontract resolve through arbitration any claim under title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment, including assault and battery, intentional infliction of emotional distress, false imprisonment, or negligent hiring, supervision, or retention.

(b) The prohibition in subsection (a) does not apply with respect to employment contracts that may not be enforced in a court of the United States.
October 16, 2009 Hal, Michigan writes:

I see your article failed mention this brutal attack occurred in 2005. It has taken 4 years for Ms. Jones to have the right to bring her case to court. Sorry, your glowing description of the wonders of arbitration are full of cow chips! This was not a dispute, this was a criminal case that should be tried in a criminal court. When leaving a comment to this blog, it states, “Essentially, don’t say anything you wouldn’t say to your mother at the dinner table.” My mother would be horrified if I tried explain why this bill is wrong even though it would have given this young lady a speedier road to justice. Justice delayed is justice denied!
October 17, 2009 Franken's First Ammendment! - Christian Forums writes:

[...] might help explain republican objections: The Truth About the Franken Amendment The Foundry __________________ When men reduce their virtues to the approximate, then evil acquires the [...]
October 17, 2009 Josh, Ohio writes:

I’ve been trying to find out a little information on this, perhaps someone here can help me. Taking Ms. Jones’ case as an example, and giving that her accusations are true, I’m assuming that she has the right to sue and press charges against the men who assaulted her, and the men who then imprisoned her. Is that correct?

If that’s correct:
To hold the company at fault for these actions, unless they have a policy allowing gang rape and imprisonment, or failed to, as a company follow up on these accusations, seems to just be shifting the blame to someone who has deeper pockets so that a larger settlement could be won and collected. Though the charges of “negligent hiring, retention and supervision of employees involved in the assault” is a company issue, and should thus be the fault of the company. I really do feel bad for this young woman, and very much believe that those responsible should be held to great account for the greatly egregious actions. But I don’t those not responsible should pay for the crimes of others.

If Ms. Jones can not directly press charges and sue the men responsible, then that should be addressed.

I really do feel bad for this young woman, and very much believe that those responsible should be held to great account for the greatly egregious actions. But I don’t those not responsible should pay for the crimes of others.

If someone could straighten me out on the facts, or point out an obvious flaw in my conclusions, I’d be very appreciative.
October 17, 2009 scott writes:

You have lost all respact and all integrity for publishing sucha dispicable article. There are no words that can describe the the utter lack of humanity you have displayed. God help you.
October 17, 2009 Giorgio, Wyoming writes:

Mr. Sherk, given the clear, narrow scope of the verbiage of the amendment address a horrific act that includes many other cases than just Ms. Jones’ case, I am disgusted by your rebuke of the amendment. Your article pulls an amazing red herring. You took worthy, respectable conservative ideological tenets of the Republican platform and degraded them by misapplying them. Sen. Franken’s amendment narrowly focuses on a violent crime - the text is very clear and unambiguous. Please don’t sully meaningful, important endeavors like tort reform by using it as a shield to defend the indefensible. If you dislike Sen. Franken’s political views, then comment on them directly; however, please do not use honorable conservative principles as a defense for heinous acts. It not only impugns the victims of those horrible acts, but the very ideology itself and those of us conservative Republicans that value it.
October 17, 2009 Charles, Florida writes:

I thought in the United States one was considered innocent until proven guilty. Well, Jamie Jones hasn’t proven anyone guilty. About the only thing I see from Jamie Jones is capitalizing on her story (whether true or fabricated). She has even gone as far to create ‘The Jamie Leigh Foundation’ a nonprofit organization accepting donations but gives an undefined definition of what exactly your donation will be used for. What I am detecting here is a lawyer or group of them, using Jamie Jones as a figure head to create this ‘foundation’ and push this bill. And anyone who knows anything about legislation knows first you get your foot in the door, and then you expand it through the amendment process. If you look at Ms Jones on wikipedia you will find she is working on… of all things “Presently, Jones is pursuing a Bachelors of Criminal Justice, American Military University, to be completed in March 2008.” So she is dedicating her life to those poor innocent coworkers by becoming an attorney and lobbying congress to ban Arbitration. Hmm wonder what her specialty will be as an attorney? I think this author is dead on the money here.
October 17, 2009 Phil Mole writes:

It’s ironic that an piece titled “The Truth About the Franken Amendment” is so apathetic toward facts. As some of the other commenters have pointed out, the amendment does NOT ban arbitration. Rather, it prohibits companies that REQUIRE settlement of rape and assault cases through arbitration from receiving federal funds. That is a pretty big difference. I suggest learning a few things about a subject before attempting to comment about it, especially when you’re speaking out AGAINST the rights of rape victims. Start by reading this:
October 17, 2009 Sue, virginia writes:

You and your foundation should be ashamed of yourselves for providing any defense to vote against this amendment. You are as callous as the 30 spineless Republican Senators who made clear where their allegiance is - to their corporate donors.
October 18, 2009 The Truth About the Franken Amendment « Conservative Thoughts and Profundity writes:

[...] The Truth About the Franken Amendment Filed under: — nhiemstra @ 7:23 am via: heritage [...]
October 18, 2009 Below The Beltway » Blog Archive » Why Did 30 Republicans Vote To Shield A Military Contractor From Liability For Rape ? writes:

[...] Heritage Foundation argued against the amendment, claiming that it was a benefit mainly to trial lawyers, and that arbitration is the better alternative. What Heritage failed to note, though, is that Ms. [...]
October 18, 2009 Janus Daniels writes:

Ken, keep facts out of think tanks!
October 18, 2009 Ian Walker, Topanga, CA writes:

This essay casts such a loose and unrigorous angle on the subject, while professing to reveal “the truth” of the matter, it does little more than betray a lack of discipline and poor reading skills. “Banning arbitration protects trial lawyers six-and-seven-figure lifestyles” The amendment does not ban arbitration. Please pay attention.
October 18, 2009 Wayne B writes:

Dear James Sherk,

So, what you’re saying is that we should get rid of any law that might cost a company some legal defense money?

How about laws like the DMCA that are used as a legal sledgehammer against the people of the United States? People can’t afford to lawyer up against those companies that choose to prosecute them, so it must be a bad law. What about companies like Monsanto that use the courts to intimidate farmers?
October 18, 2009 Zack, Pennsylvania writes:

Whoa, KBR is appealing the ruling for Ms. Jones to have her day in court. This is not over and not by a long shot. These people make me sick. I find it somewhat rewarding that the Senators that voted against this amendment are being outed but the true justice would be outing the seven who committed this heinous crime. Of course, I am sure this will be made public knowledge when the trial finally does take place. Oh, I cannot wait!

Im rooting for ya Ms. Jones.
October 18, 2009 Amelie, Los Angeles writes:

We now live in a society in which the corporations and employers have far more legal rights and privileges than individuals, workers, and consumers. What happened to Ms. Jones was not only horrifying, it was Halliburton’s fault! Halliburton tolerated these thug employees and deliberately covered up the fact that other employees had been assaulted under similar conditions–what a splendid use of our tax dollars! As Jon Stewart pointed out, there was no permission to rape clause in Ms. Jones’ contract. James Sherk’s take on this issue is loathesome. How would he have felt had Ms. Jones been his own daughter?
October 18, 2009 Jay, Alabama writes:

I vomited when I read this article. It made me that sick. Today you cannot get buy a car, get a job, and do most things without signing a contract accepting arbitration. The rights guaranteed to us by our constitution have been taken away by the collusion of business and government. Now you can get raped without access to due process and our justice system. Disgusting. What is next? This article outlines the thinking that will get us to the next level of collusion between business and government.
October 19, 2009 Andy H. Kansas City writes:

“Arbitrators award employees fair damages in cases of actual injustice” What evidence do you have to support this claim that makes up the cornerstone of your argument? You’re a think tank and don’t even take the time to back up your “thinking” with evidence? The reality is that your claim cannot be substantiated. Not even KBR lawyers could back this up. Arbitration protects the employer not only by lowering costs, as you claim, but by awarding insignificant damages that can’t compel them to stop the alleged abuses or give them reason to prevent the injustice in the future.
October 19, 2009 Beth, Virginia writes:

How about employers that are not law-abiding citizens? How about employers that commit manslaughter? What about employers who are seeking only to enhance the bottom line, not provide health care to it’s paying members who have no idea they are signing their life away?

What about those employers?

I know one such company and they killed my Daughter. I could not get a jury trial. Is that JUST in this country?
October 19, 2009 American Compass » 30 Republicans choose Halliburton over rape victim writes:

[...] 30 Republicans vote no? The Heritage Foundation would have you believe that the Franken Amendment sought to reward trial lawyers who raise frivolous suits against [...]
October 19, 2009 Travis, Ca writes:

The government, as any corporation, has a right to choose how to spend it’s money. This doesn’t demand no arbitration, it simply demands that people receiving government money not have Haliburton’s despicable policies!

As a taxpayer, I have no desire to see my money being funneled into a corporation that tries to hush up the rape of their employees by other employees!
October 19, 2009 Ria, DC writes:

This is a poorly written blog post, but that’s not the focus of my complaint. My complaint is how the author of this post can be so cold and cruel and calculating as to reference the case of Jamie Leigh Jones and still push his agenda (yes, his, note no female Republican senators could conscionably vote against this amendment) and fluffy philosophy above what every mentally healthy human being realizes: this young woman, and countless employees, should be safe in the workplace.

How the writer of this blog post can face himself in the mirror, I don’t know. To be honest, I don’t care if anybody trots out the “what’s good for the corporation is good for the people” line, but I am sickened and horrified by what happed to this young woman, and I am sickened and horrified that there are people of authority out there who do not care. This amendment is a no-brainer. The 30 senators who voted against it have shown themselves to be capable of pure evil — pure morally relativistic evil. I have never seen a better example of that than now. I cannot believe I almost voted for John McCain. I believed he would be a good leader but he stands for NOTHING. Either he has lost his mind or I was a fool to believe he stood for anything. I am flabbergasted and totally appalled that these men have revealed themselves to be so despicable, so thoughtless, and so entrenched in politics that they would be so casual about Ms. Jones’s ordeal. Talk about the banality of evil!

KBR, Halliburton, Blackwater — is there no end to revealing how far these contractors will go in revealing that they have more than their fair share of psychopaths and sociopaths?
October 19, 2009 Dan Francis, Upstate NY writes:

The explaination that Heritage gives may be correct according to the reading, but it is flat out wrong. Any contractor drinking at the public trough outta play fair - this case, they did not, period… lousy contracts with clause even close the one Halliburton had, has no place in American jurisprudence… even by GOP illogic!
October 19, 2009 Magmak1 writes:

This incident, and any defense of it on the basis of “law”, the flag, or anything else is abominable and disgusting. I thoroughly disagree that someone can be made to sign away their criminal and civil defenses in favor of employment and corporate profit. We have fallen far indeed. Think of it if it were your daughter, your wife, or even your self.

“It is a sign of our moral confusion that we are forced to have a conversation about whether a woman who has been gang-raped can go to court against her assailants. It is altogether disagreeable that we have to have it with inhuman entities that want us to grant them legal superiority in laws meant for humans.”

One would think humanity, civility and and some sense of right and wrong would override the nonsense I read above. But I forgot where we are living these days.

And, yes, I would say the same thing to my mother and father at the dinner table. Have you no decency?
October 20, 2009 Bobbie Jay writes:

I’d like to see the accountable held accountable with reprimand under the law. and the employer also reprimand the accountable.

Any violator working for government comes out of our pockets and there are alot of them we will never know about or be able to do anything about… look at the president’s administration. At least businesses have to take it at their expense and not at taxpayers… I don’t trust Franken or his narrowly written amendment.
October 20, 2009 Republicans for Rape? - Forums writes:

[...] out why the Republicans voted against the amendment. This is all I’ve been able to find so far: The Truth About the Franken Amendment The Foundry __________________ You…asked for him, you got him, [...]
October 20, 2009 John Curry writes:

The heritige position seems disingenuous.
Should the firefighters in Connecticut have been held to binding arbitration? If they had, there would be no decision for RICCI v. DESTEFANO.
Binding arbitration may be appropriate for a resolution of a pay dispute, but this is a major crime against this woman, by her coworkers.
Did KBR/Halliburton take appropriate steps for her well being? It seems to me you can’t find the facts until an investigator (or a lawyer) demands the information under discovery.
Otherwise it is likely the full facts will not be known.
October 21, 2009 – Convenient Rape and the Senate writes:

[...] This is not even about justice or anything but lining plaintiff lawyers’ pockets. From Heritage: This amendment is a move towards the plaintiff bar’s longstanding goal of banning dispute [...]
October 21, 2009 Convenient Rape and the Senate | Right Wing News writes:

[...] This is not even about justice or anything but lining plaintiff lawyers’ pockets. From Heritage: This amendment is a move towards the plaintiff bar’s longstanding goal of banning dispute [...]
October 21, 2009 Convenient Rape and the Senate « Tool of the Patriarchy writes:

[...] This is not even about justice or anything but lining plaintiff lawyers’ pockets. From Heritage: This amendment is a move towards the plaintiff bar’s longstanding goal of banning dispute [...]
October 21, 2009 steme writes:

i have never seen such an overuse of the words “allegedly” and “[she] claims [that]” with regard to the jones case.
October 21, 2009 CD, Houston, TX writes:

This is one of the worst articles I’ve ever read. The author completely missed the larger picture on this issue. Al Franken is a hero, and it’s sad that he is. This should just be plain common sense and just changed with no argument. But instead our Republican Senators feel the need to protect the likes of KBR/Halliburton and deny the rights to a woman who was gang raped.

Arbitration or court hearing, that’s not what this is really about.
October 21, 2009 William, Arlington, VA writes:

CD in Houston: You totally miss the point. If you read the article, you’d understand that the woman in this case was not denied her day in court. Per the article:

“The courts ruled that Halliburton could not arbitrate her claims of assault and battery, intentional infliction of emotional distress, negligent hiring, retention and supervision of employees involved in the assault, and false imprisonment.”

That means that though some claims are required to go through arbitration, the woman in this case was able to bring suit for her attack. The underlying issue here is that her case is being used as an excuse to bring about a windfall for plaintiff’s attorneys — you should be able to see through the smokescreen and catch that intent.
October 21, 2009 Franken Amendment not about rape - it's about another giveaway to lawyers writes:

[...] Heritage Foundation’s James Sherk points out that despite Halliburton/KBR’s requirement, Jones hasn’t been prevented from seeking [...]
October 21, 2009 Steve, Cedarburg, WI writes:

William in Arlington I think you totally miss the point. It took 4 years for her to get her day in court, and Halliburton is appealing. One would think you’d be able to see through the smokescreen that the 30 Republicans threw up as their shallow reasoning for opposing this. The amendment is closely drawn and limited in scope. I thought conservatives were about individual responsibility, not hiding behind smokescreens. I for one am very disappointed in the Heritage Foundation’s response to this issue.
October 22, 2009 » Blog Archive » Graham and his vote on the Franken amendment writes:

[...] [...]
October 22, 2009 James Sherk writes:

A lot of commentators misunderstand my point in this blog post. Rape is a terrible crime, and Jones’ allegations against Halliburton, if proven true, are indefensible. She would deserve both sympathy and justice. But the courts have ruled that she will get her day in court, and so the entire basis for a legislative fix for a problem that the courts have already addressed seems dubious at best.

The problem is that the Franken amendment goes far beyond ensuring that any future victims of such crimes also have access to the courts. The Franken amendment was not narrowly targeted at Jamie Jones’ case. It does not merely cover arbitration in cases of “sexual assault or harassment, including assault and battery, intentional infliction of emotional distress, false imprisonment, or negligent hiring, supervision, or retention.” It also affects all cases under Title VII of the 1964 Civil Rights Act.

Commentators rightly point out that the amendment does not literally ban arbitration. Rather, it bans contracts that require arbitration. Effectively, however, this amounts to the same thing. In covering Title VII the Franken amendment effectively bans arbitration. Legislation preventing employers from requiring arbitration has the same practical effect as legislation banning it outright. If employers - legally - cannot insist on arbitration they are left exposed to massive and unpredictable legal costs even when they have done nothing wrong.
October 22, 2009 Berdawn, Ohio writes:

I certainly hope this is parody and the author intended it for the Onion. pathetic, if not.
October 22, 2009 Wayne B writes:

“If employers - legally - cannot insist on arbitration they are left exposed to massive and unpredictable legal costs even when they have done nothing wrong.”

Large companies use legal costs as a bludgeon against smaller entities (smaller companies, consumers, farmers) EVERY DAY.

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