E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
It is now well
established that the Roberts Court is extremely
business-friendly, but this way of putting it masks the fact that there are
different ways of being business-friendly.
Some of these subvert what is valuable and honorable about business.
Today’s New York Times reports
the increasingly widespread use of arbitration clauses in consumer contracts,
with the Supreme Court’s encouragement, to insulate businesses from class action
suits. The consequence is that the
misbehavior that such suits target – small thefts and abuses that affect large
numbers of consumers, producing millions of dollars in illicit profits – is insulated
from any legal remedy.
Among the lawyers who devised this clever trick was one John
G. Roberts. He later provided the
crucial vote to interpret the Federal Arbitration Act to shut down consumer and
employment discrimination suits, in defiance of the intentions of the act’s
authors.
Doubtless class action suits can be a nuisance for
businesses, and sometimes they’re not meritorious. But when they are entirely blocked, really
nasty business practices can be conducted with impunity. The Times describes one case in which Sprint
allegedly imposed roaming charges for customers’ cellphone calls from their homes. If this was true, each individual suffered a
roughly $20 loss, far too little to be worth suing for on an individual basis,
even though it was worth quite a bit to Sprint.
(Sprint’s successful legal argument was that it did not matter if it was
true.)
In the world that the Court’s arbitration jurisprudence has
brought about, businesses that do not swindle their customers for small sums
are foolishly leaving money on the table.
Business is a good and honorable pursuit because, in a free
market, you can feel confident that your good or service is making your
customers better off. If you weren’t
somehow improving the world, you wouldn’t be making any money. But the Court doesn’t care if you’re
honest. If you’re in business, the Court
is on your side.
There has been a notorious tendency, in some police
departments, for officers to refuse to inform on corrupt or brutal cops. I suppose you could say that this is “police-officer-friendly.”
A similar guild mentality led many leaders of the
Catholic Church for years to cover up priests' sexual abuse of minors. One might perhaps call that “priest-friendly.” But isn’t that a silly way to talk? The best people in both professions
understood that this willful concealment spread the disgrace from these few
malefactors to the entire profession. You don’t protect a corrupt cop just because
he’s a cop. You don’t protect a
predatory priest just because he’s a priest.
For the same reason, you don’t protect a cheating businessman
just because he’s a businessman. Honest
people in that profession should repel the Court’s embrace with disgust.