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« Oral argument previews: Prachasaisoradej and Tobacco | Main | Still more on the Gentry argument »

Thursday, June 07, 2007


Marc Primo

"It would not be unreasonable for the Court to conclude that a public policy favoring access to the judicial system (which is what the class action device facilitates) should outweigh any countervailing public policy favoring a procedural device (arbitration) that serves to limit access. To a large degree, Discover Bank stands for exactly that proposition"

Just a quick note on this last comment - from the summary, I'm afraid the Court may fall into this same false dichotomy: class actions v. arbitration. I don't think thats the issue. It's class actions vs. class action bans/contract rights. Arbitration isn't really implicated because you can have a classwide arbitration. So the "public policy" sanctity of arbitrations isn't really at issue.

Kimberly A. Kralowec

Thanks, Marc, that's a good point. As you note, both of the argument summaries mentioned that at least one of the justices is looking at the case in terms of class action policy vs. arbitration policy, hence my comment in response. Your finer point is well taken.

michael walsh

To listen to Justices Werdegar and Kennard, it should be "class actions & employees' right to earned wages" v. "class action bans and contract rights."


LC 923 "is nothing more than a vague Depression-era proclamation that collective bargaining is favored by public policy"???

It is the state's explicit policy that

(a) the government has encouraged capital conglomeration through incorporation, which has had the side-effect of
(b) distorting the free market for workers' services (many employees, few employers) to such a degree that unorganized workers do not, in true fact, enjoy a basic liberty, the liberty of contract.
(c) And, as a result, it is impossible for unorganized workers to obtain terms or conditions of employment that meet the extremely low threshhold of being labelled as "acceptable."

Thus, one party exercises its "freedom of contract" to impose "unacceptable" terms and conditions on the other.

That's not me talking. That is the State of California talking. LC 923 has been the unquestioned public policy of this state for 60 years. (And the point is so non-controversial that it is a long-standing federal policy as well - 29 U.S.C. Sec. 151.)

You'd think that non-activist courts, courts that submit to the declared will of the legislature, would take this LC 923 policy into consideration when making foundational statements such as "the law of employment is fundamentally contractual." Or, at the very least, acknowledge it, saying something like: "Although unorganized employees do not enjoy freedom of contract, nevertheless we intend to enforce the unacceptable terms and conditions of employment imposed on them by their corporate employers."

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