I'm not a lawyer, but have been told that I have a pretty good legal mind. However, after 2 weeks of dealing with the Franken amendment, the Jamie Leigh Jones case, and the horrors visited upon both her, other women, and our soldiers by KBR/Halliburton (electrocuting showers, anyone?), I'm simply too damned worn out to properly respond to the email I received earlier this evening.
Therefore, I'm putting out a call to those of you with sharper legal minds than I to help me compose a proper response to the email below:
"These are all criminal actions which have absolutely NO business being dealt with via arbitration"
Well, arbitration is for dealing with torts, which may or may not also be crimes. But I think you understand that, and hence I'm not sure what your basis is for saying, in effect, arbitration is not designed to deal with the torts that are also crimes. As a lawyer, that's not a distinction I'm aware of. And in fact, our local court system in Phoenix requires mandatory arbitration for all civil cases under certain monetary limits, irrespective of whether they're based on conduct that's also criminal,.
But even accepting your distinction as significant for purposes of analyzing Franken's amendment, why then isn't the amendment limited to dealing only with torts that are also crimes? I.e., why does it prohibit mandatory arbitration for cases that arise out of non-crimes?
Maybe the less lawyerly way of putting it is, if this amendment is to give victims like Ms. Jones their day in court, and that's obviously the impetus, then why does it cover torts for which the basic justice considerations of Ms. Jones case have no applicability? (E.g., is it really a problem for a garden variety sexual harassment claim, say for a demotion following a inter-office break up, to be subject to arbitration?) It doesn't seem to me to dishonor Ms. Jones to try to craft a remedy to her situation with precision.
The point of all of which being, in my view there are absolutely legitimate reasons for opposing, or at least debating, the legislation, at least as written. Arbitration clauses exist for legitimate reasons relating to the nature of our judicial system. Employers can be literally wiped out defending even spurious claims.
Accordingly, if we're going to go beyond fixing what happened to Ms. Jones and address a prevalent system of risk management, that seems to me to warrant reasonable discussion. Yet what we get in large doses is the demagoguery and manipulation of aligning one side with justice and the other side with rapists, which is foolishness. That's exactly the sort of reactionary politicization of important events that regularly gets us in trouble through resulting policy decisions, as when W swept us into Iraq with his 'you're with us or the terrorists' rhetoric. These issues are important and require more care--and more respect for other people's values--than we're usually seeing these days. It's wonderful to fight for the right thing, but there's no need to be always trampling over other important considerations and attacking of the character of the side in the process.
Now, in my heart I know that the real reason why 30 Republican Senators voted against the Franken amendment have nothing to do with what's right or what's legal; it has to do with four things:
- It's not so much that they actually support rape as that they simply don't give a shit one way or the other whether women are raped (unless, I presume, it was their own wife or daughter).
- It was introduced by a Democrat;
- It was sparked by atrocious behavior by one of their favorite companies;
- It might threaten the financial well-being of a huge military contractor
With #1 being the case, #s 2, 3 and 4 become self-evident.
However, this guy is clearly trying to claim that there are legitimate reasons to be concerned over the amendment, above and beyond the actual, sickening reasons above. His rationale seems to center over the concern that the wording of the amendment could be open to abuse by employees making frivolous/fraudulent claims of abuse/harassment/etc, thus increasing the company's legal fees enormously.
Quite frankly, my gut response to this is, "It doesn't sound like it to me, but even if that is the case, given that Ms. Jones and at least 40 other women have suffered real sexual assault who were then forbidden from suing--or even speaking out about it--due to the arbitration clause, I'd rather error on the side of the employees than on the side of the company."
Basically, my take is, if 40+ real rape victims receiving justice means that one frivolous lawsuit costs a military contractor a couple million bucks unfairly, so be it; I'm not exactly gonna cry in my sleep over it. Besides, the amendment can always be tweaked in the future if and when any actual loopholes in it are exploited.
Basically, he's saying that the amendment, which would help protect REAL people in the REAL world, shouldn't be adopted because it MIGHT, CONCEIVABLY be exploited by THEORETICAL people in the future.
However, I'm really seeking a more legal framework to respond to him with. Your assistance would be greatly appreciated.