Categories
Government

Arbitration Fairness Act of 2007

The Consumerist has more on the Arbitration Fairness Act of 2007.

People Over Profits has an email campaign but it also helps to contact your Congressional rep directly. A letter of phone call also works wonders.

How important is this bill? There is no bill pending in Congress that scares Corporate America more than this one. There is no bill pending in Congress that could more help the American people than this one.

Due to rulings in the Supreme Court, mandatory arbitration agreements now trump the Equal Employment Opportunity Commission when it comes to employment discrimination lawsuits. This means that an arbitrator can make decisions based on civil rights, can do so without following the law, can do so without following the arbitration rules themselves, and can do so without any transparency into the decision process.

…after Sherri Warner lost her discrimination and wrongful firing suit in mandatory arbitration, a San Francisco arbitrator not only charged her nearly $16,000 for his time, he ordered her to pay her opponent’s legal fees of more than $207,000.

The fee award would probably not have been allowed in court, and it forced Warner into bankruptcy. But after her lawyer, Stephen Gorski, asked the arbitrator to explain his decision, the arbitrator refused when reminded no rules required him to do so.

Arbitrators rarely issue written opinions, making requests for review virtually impossible.

What’s scarier is that this case was ten years ago, and since then, the Supreme Court has given even more power to arbitration, including giving it power overruling on employment discrimination that now supersedes that of the EEOC. The Supremes have even given it power over the law, itself. I a recent case, one of my favorites, Buckeye Check Cashing vs. Cardenga, a man sued a check cashing company claiming that the conditions of the loan were illegal. The company, which had a mandatory arbitration clause, demanded that the claim be taken to arbitration. The state of Florida disagreed, saying that an arbitration clause that was in a contract deemed to be illegal is not enforceable.

However, our Scalia controlled Supreme Court doesn’t allow a little thing like an illegal contract deter it. It decided that it wasn’t up to the courts to determine the validity of an arbitration clause just because it happened to be in an illegal contract — the only item the courts could determine is whether the arbitration clause is, in and of itself, legal. The rest of the contract was then up to the arbitrator.

Question

Under the Federal Arbitration Act, may a party avoid arbitration by arguing that the contract in which the arbitration clause is contained is illegal?

Conclusion

No. The 7-1 majority (Justice Samuel Alito not participating) ruled that challenges to the legality of a contract as a whole must be argued before the arbitrator rather than a court. The opinion by Justice Antonin Scalia explained that “unless the challenge is to the arbitration clause itself, the issue of the contract’s validity is considered by the arbitrator in the first instance.” The Court held that the Florida Supreme Court had been wrong to rely on a distinction between void and merely voidable contracts, because the word “contract” in the Federal Arbitration Act includes contracts later found to be void. Justice Clarence Thomas dissented due to his long-held view that the FAA does not apply in state courts.

This is a frustrating topic for me, because I’ve watched over the years now as arbitration has eroded all of our judicial rights, as granted by the Seventh Amendment to the Constitution. It’s frustrating because I can’t seem to convey, in this weblog, how serious this can get.

A legal expert in Texas once said that he felt in ten years, there would no longer be a civil court system because of how much it is being eroded by an act that was basically put into law in 1925, as a way for businesses to come to ‘gentlemanly agreements’ in regards to a dispute. It was never intended to be used by corporations against the common citizen.

This is also a case of the breakdown of the system of checks and balances built into our government. The Supreme Court has empowered arbitration and supported mandatory arbitration to the point that it now is undermining the very nature of civil rights in our country, and was allowed to do so, unchecked, in the Republican controlled Congress.

Now we have a Democratic controlled congress. More than that, we have a congress where even many Republicans are beginning to look askance at the miscarriage of justice that occurs under the auspices of ‘arbitration’.

American Corporations do not want this Bill. American Corporations, who have delivered shoddy equipment, surly service, and bad faith consumerism.

Who supports this bill?

The Feingold-Johnson bill is supported by a host of consumer advocate organizations including Consumers Union, Public Citizen, American Association for Justice, Center for Responsible Lending, Consumer Federation of America, Homeowners Against Deficient Dwellings, Home Owners for Better Building, National Association of Consumer Advocates, National Consumer Law Center (on behalf of its low income clients), National Consumer Coalition for Nursing Home Reform, the National Employment Lawyers Association and Public Justice.

The list is only growing, as word of this Bill slowly trickles out.

Support the Arbitration Fairness Act of 2007. Please.

Categories
Political

The sky is falling. Blame Jay.

I hadn’t planned on covering much Missouri news until I open MissouriGreen.com, but the situation at Johnson’s Shut-Ins is getting ridiculous.

Now our Republican Lt. Gov is having a press conference at the Shut-Ins to basically blame Jay Nixon–state Attorney General and Democratic candidate for governor–for the fact that Ameren is refusing to follow through on its commitment to restore Johnson’s in a timely enough manner for the park to open this year.

The issue? There is criminal investigation–originally demanded by Governor Blunt, and ordered by a Reynolds County Judge–into the reservoir breach and Ameren has decided it won’t do anything until this is ‘resolved’. This investigation would normally fall into the province of the local district attorney, but he had a conflict of interest and the investigation than fell to the state attorney general’s office.

What an ideal situation for Governor Blunt this turned out to be: use Jay Nixon doing his job against him. Demand that Nixon’s office do an investigation and then castigate him for doing so.

The Republican governor and Lt. Governor, and various Republican state officials, as well as the Republican controlled Department of Natural Resources seem to think this is a real godsend, because they can Blame Jay whenever anything happens to delay the opening of this park. Ameren isn’t unhappy about the situation either, because it can use it to pit the parties against one another, until eventually Ameren gets off with no more than a slap on the wrist for its actions.

  • Let’s ignore Ameren’s written and verbal commitments right after the breach to fix the park and the river as soon as possible.
  • Let’s ignore the fact that until the park is fixed and the river is stabilized, the water quality is suffering and Ameren should be facing daily fines for such.
  • Why don’t we ‘forget’ the idea of the state actually paying for the repairs and then getting reimbursed from whatever settlement is derived in the upcoming lawsuit.
  • We can also forget that if this dam break had happened in the peak season, most likely hundreds, maybe even thousands of people would have been injured or killed.
  • While we’re at it, let’s ignore the folks in Reynolds County who are dependent on this park for part of their livelihood. Oh that’s right: let’s keep the school system dependent on Ameren taxes so that the county can’t aggressively push for accountability from the company. So, while we’re at it, let’s not use state money to support the school systems, either.

No need to be reminded that the qualified people who were running the DNR–through both Republican and Democrat administrations–were all fired the very day that Governor Blunt took office, so that he could put in a Doyle Childers, a Republican crony who had exceeded term limits in state office and needed a job. A man who has demonstrated that corporate and big farm issues matter much more to him then something like the clean water and the environment which, after all, don’t pay taxes or donate money to political campaigns. A man who does not have the ability or background to lead the DNR, much less have the decency to put politics aside to do his job.

Jay Nixon is doing his job as Attorney General. He’s not turning this into a political windfall. He could as easily ‘drop’ the suit and become an instant hero–but then what happens the next time Ameren decides it’s more economical to just ignore maintenance on one of their projects rather than shut down profitable energy generating operations? After all, the company doesn’t have to follow through on its commitments, not while Governor Blunt and his cronies control so much of the DNR.

This isn’t a big national story and most of you probably won’t care about what happens in this state. But the problems at the highest level of government don’t just happen by themselves–using government resources to support a political agenda starts at the local levels, and when such mechanizations are ignored or tolerated, propagate to the highest offices in the land.

I’m so mad right now I could spit. If I had known sooner that the Lt. Gov and several REPUBLICAN state officials were planning a little shindig at the park–our park, our state park, the one that belongs to all of us, not just the Republicans–I would have driven over there to see if we could turn this into a real question and answer session, instead of the blatant political get together this is turning out to be.

More at Black River News herehere and here. Make sure to read the comments.

“Blame Jay”, indeed.

Then there’s the new one from Black River News, from an unspecified tipster:

Thursday Mactec and Ameren presented to DNR for approval the final drawings for the ‘scenic overlook’ over the scour and the new campground on Goggins. DNR couldn’t/wouldn’t approve them. A representative each from Mactec and Ameren had to walk out of the meeting for a while to cool off. They are extremely frustrated with DNR’s plodding. I’m told Mactec has only a week or two of work to do on it’s current schedule, and unless DNR approves some plans soon they are going to be sitting on their hands.

If this is true, then this is evidence of gross negligence and malfeasance. How far is Childers willing to go to make Nixon ‘look bad’?

Ameren just issued a press release about 20 minutes ago, stating in part:

AmerenUE officials today stressed that it’s their belief that the Johnson’s Shut-Ins State Park can be opened for day use this summer if all parties — including state agencies — work together to make the park available to Missouri’s citizens.

AmerenUE has been working diligently for the past 15 months to restore and repair the damage to the park resulting from the Taum Sauk Reservoir breach.

“We believe the park can and should be reopened for more extensive public use later this summer, including swimming in the Shut-Ins,” says AmerenUE President and Chief Executive Officer Thomas R. Voss. “However,
that will take a cooperative effort by all parties. At AmerenUE, we are ready and willing to discuss this with all pertinent agencies.”

AmerenUE believes a safe and restored river system, shut-ins access and security controls can be in place so that portions of the park can be opened by July 1. Ongoing construction activities can be segregated from public use areas so that restoration activities can continue uninterrupted.

This summer, visitors to the park would be able to enjoy the newly rebuilt park store, newly restored picnic areas and a boardwalk that provides access to areas where they can enjoy swimming in the shut-ins.

Over the past 15 months, the company has moved to restore areas affected by the breach of the Taum Sauk upper reservoir. Since the day of the Dec. 14, 2005, breach, AmerenUE and its contractors have:
— removed nearly 15,000 truckloads of material from the site;
— restored the delicate “fen” — a unique and sensitive forested wetlands with distinct features and vegetation — crews literally removed debris and silt by hand.
— worked to improve water quality in the lower reservoir and Black River;
— graded and seeded the campground area in Johnson’s Shut-Ins, rebuilt the camp store and repaired the boardwalks.

Meanwhile, the company has supported the local economy, settling thousands of dollars worth of claims, conducting an aggressive advertising campaign to promote tourism in the Taum Sauk area, and launching an award-winning Web site to give local businesses a way to reach a range of audiences.

Actually the aggressive advertising campaign and ‘award winning website’ was a dud — a passive web site that was never updated. But it’s interesting about the supposed items that have been finished.

Exactly why is the park not opening? Who is doing what, now, and how much is finished?

This is getting absurd. The DNR says last week the park can’t open this summer–work not done. Now Ameren is saying, well, yes the work is done. Which is it? Either the work is done, or it’s not. Either the park can open, or it can’t. If the work is that far along, what exactly is the hold up at the DNR? There shouldn’t be any need of a finalized lawsuit or criminal action to open the park.

What is DNR’s reason for not opening the park?

Third Update

Talk about breaking news, the St. Louis Business Journal just issued a story about the conflict between DNR and Ameren. You can read the story here. Here is the DNR press release associated with the story.

The press release, which is almost incoherent, has the following:

“We have had a plan to reopen Johnson’s Shut-Ins State Park this summer that ensures public safety,” said Childers. “The State of Missouri and its citizens do not want a last-minute, band-aid fix that severely limits their use of the resource this summer. We simply cannot allow visitors into Johnson’s Shut-Ins State Park under dangerous conditions.”

When the shut-ins are available for swimming, there is a great deal of public use and need for services. The heavy rains of the past two weeks have caused rebar and other dangerous materials to surface again in the shut-ins.

They don’t have to allow swimming in order to open the park. Just being able to visit the park and the shut-ins would be sufficient. The park didn’t have swimming last year, and a lot of people would like to take a peek at what’s happening with the restoration, visit the fens, walk the boardwalk by the shut-ins.

Childers keeps bringing up issues related to Nixon, yet Ameren has not once made a statement to this effect. All Ameren has asked is that the agencies involved work together, and the company has a right to ask this.

It wasn’t that long ago when Nixon’s office made a statement that the DNR and the AG had worked towards a solution, when all of a sudden, the DNR pulled out. Issued a press release condemning Nixon. Totally blew off all the work that had been accomplished.

Time for Childers to be replaced. Time for Missouri to forget Gonzales and Bush and pay attention to the problems in our own backyard.

Categories
Diversity Political

God and technology

Recovered from the Wayback Machine.

The recent posts that Norm Jenson and PZ Myers have been publishing demonstrate a disturbing trend in the United States: that discrimination against atheists is not only to be tolerated, but to be encouraged. Republican candidate Mitt Romney answered a heckler last week who challenged his religion by saying it doesn’t matter the type of faith a President of the US has, as long as they were persons of faith. An opinion poll recently stated that Americans would be more likely to vote for a black, gay, Muslim, woman before voting for an atheist.

And now PZ Myers points to a letter to an editor from a person who doesn’t even believe that atheists should be allowed to live in the US:

It’s time to stomp out atheists in America. The majority of Americans would love to see atheists kicked out of America. If you don’t believe in God, then get out of this country.

The United States is based on having freedom of religion, speech, etc., which means you can believe in God any way you want (Baptist, Catholic, Methodist, etc.), but you must believe.

I don’t recall freedom of religion meaning no religion. Our currency even says, “In God We Trust.” So, to all the atheists in America: Get off of our country.

Atheists have caused the ruin of this great nation by taking prayer out of our schools and being able to practice what can only be called evil. I don’t care if they have never committed a crime, atheists are the reason crime is rampant.

(Originally printed at My Confined Space, though it would seem this one has been making the rounds a few years.)

Alice’s letter to the editor brought up something I was curious about…

If I tell you I’m an atheist, would this make a difference to you whether you would buy one of my technology books?

Would you be less willing to buy? More willing to buy? Or do you believe that there’s no connection between technology and religion, and your purchasing of any of my books would be based solely on the contents of the books?

Or is it that you believe it’s OK for me to write and sell the books, but only if I move to, say, Canada or Australia?

If you’re less likely to buy my books, why? Do you feel you’re helping to support a sinner who only deserves condemnation and despair? Or do you think that God talks to technology writers who believe? If so, what do you think she says?

You used “its” when you should have used “it’s”. I really hate that. Do it again, and I’ll send lightning.

This is an informal poll: all opinions are welcome.

Categories
Political

Blame Jay

We’ve had an extraordinary and rather unpleasant situation here in Missouri the last few years. Our governor, Matt Blunt, and our State Attorney General Jay Nixon have not seen eye to eye on many issues, and almost any event associated with our state ends up being about the two of them.

Leaving aside the fact that both will face each other for election to governor next year, there are fundamental differences between the two men, which has left Jay Nixon spending a great deal of his time countering the efforts of our governor. Not surprising: Matt Blunt is the new breed of Republican that is backing away from the fundamentalists, favoring a form of social Darwinism that has even the most hidebound Republican going: eh, now, wait a sec.

I’ve written about the Katy Trail bridge and the Taum Sauk Dam break, but the recent fooflah literally boggles the mind.

Several months back, a woman who worked in the Department of Agriculture, Heather Elder, complained to the Governor’s office about the sexual harassment and discrimination she had suffered from the head of the department, Fred Ferrell. She accused Ferrell of hugging her, touching her inappropriately, telling her she should participate in a wet t-shirt contest, telling others that women are ‘show dogs’, and the only reason to hire such is because of our looks, and so on.

However, Ferrell is a friend of Big Agriculture, working hand in hand with the ‘new’ head of DNR, Doyle Childers, to roll back many of the environmental protections in place in our state so that large agricultural interests don’t have to worry about the smell of their big hog farms, or how much crap they dump into our rivers and streams.

When the complaint was received, Blunt took the unprecedented and illegal act of having the State Patrol investigate the allegations. He then used the DNR’s legal staff to negotiate a settlement with Elder that included what amounted to a slap on the wrist for Ferrell (sensitivity training, 10,000 fine, which he hasn’t paid), and a payoff and ordered cover up with Elder. The amount of money of the pay off was 70,000 dollars, paid from the Department of Agriculture’s equipment fund.

This all blew up last week when Elder rejected the offer and took the issue to the Attorney General’s office after the Missouri Human Rights Commission issued her a right-to-sue letter. Jay Nixon has now filed a suit on her behalf. The reason Elder refused the offer? She refused to let this be swept under the table, itself an act that is also illegal based on the Sunshine Act.

Caught not only misusing the state Patrol, misusing Agricultural department funds, misusing DNR resources, and protecting a man who isn’t fit to slop the corporate pigs he tried to protect, Blunt did the only thing he could: he tried to blame Nixon. How? By saying that he, Blunt, had to manage on his own since Nixon wouldn’t get involved in the initial negotiations.

As the *opinion piece in the conservative publication News-Leader, based in that strongest of Republican holds, Springfield, demonstrated: no one is buying any of this crap:

Blunt faces a growing cacophony of criticism for his mishandling of the sexual harassment and demeaning behavior of Ferrell, his former director of the Department of Agriculture. His initial reaction? Deflect some of the blame to Nixon for not getting involved in the case earlier.

The problem with that is Nixon didn’t hire a lecherous old man to join his cabinet. Blunt did.

Nixon didn’t respond to a serious allegation of sexual harassment by a female state worker by ordering an illegal Missouri Highway Patrol investigation. Blunt did.

Nixon didn’t ignore a report that any reasonable thinking person would realize displayed the sort of behavior by Ferrell that would disqualify him from any position of management in today’s society, let alone a position atop a state agency. Blunt did.

The governor told the News-Leader he believes in second chances, but apparently that lofty idea only applies to cabinet members and not their victims.

This act will kill any of Blunt’s chances for re-election, though with his growing friendship with Mitt Romney, he may not mind. Expect him to head toward a shot at the nationals, and if he does, run, run to your polls and answer with a resounding, “No!”

I am serious when I write that Blunt has done an amazing amount of damage in this state in his zeal to provide a ‘comfortable’ support system for big business. Kicked 300,000 children, disabled, and elderly off of Medicare; helped change water laws until the EPA brought all of that to a screeching halt; turned the Taum Sauk event into a political opportunity; brought in incompetent Republican cronies to head important departments; trying to sell off the fund that enable poor folks to go to school; put absurd restrictions on the universities for what they can do with the money set aside for capital improvements with this money.

This voters of this state made a terrible mistake when they put Blunt in as governor. Like the Ferrell case, that’s another thing that can’t be blamed on Jay Nixon–we did it all by ourselves.

The St. Louis Post-Dispatch interviewed the Republican women state representatives, and the majority of the answers are understandable, though a little disappointing. Most condemned Ferrel’s behavior (or pleaded the 5th), but were reserved on Blunt’s role. However, there was one….

One of the Republican legislators interviewed said she hadn’t reviewed the case; she said similar sexual harassment claims stem from misunderstandings.

Rep. Jane Cunningham, R-Chesterfield, said she’s worked around men long enough to know that two women can often interpret the same behavior differently.

“I work in a man’s world and sometimes men show encouragement by hugging,” she said. “Is that sexual harassment or is that encouragement? In my mind, it’s encouragement.”

Un-be-liev-able.

* via Black River News.

Categories
Political

Evolution and fact

The Kansas State Board of Education removed the ‘intelligent design’ propaganda from the state’s school system, but that won’t end the battle. I don’t think people fully understand how rabid some of the fundamentalist are here in the Kansas/Missouri area. It doesn’t matter what the populace wants; it doesn’t matter what the majority believe; it doesn’t even matter what the Supreme Court rules: these folks are right, everyone else is wrong.

In Missouri, even after the vote that allowed for stem cell research, state representatives want to place another vote on the ballot in 2008 on this issue again. The only way to stop this is to stop putting these people into office, or barring that, stop giving them any power.