1
00:00:00,120 --> 00:00:04,320
Speaker 1: You will and you will become a member of the U. S.

2
00:00:04,320 --> 00:00:08,719
Speaker 1: Supreme Court. That was Senator Patrick Leahy telling Supreme Court

3
00:00:08,800 --> 00:00:12,560
Speaker 1: nominique Tangi Brown Jackson that no matter of the ordeal

4
00:00:12,560 --> 00:00:16,480
Speaker 1: of her nomination hearings where Republican senators have barraged her

5
00:00:16,520 --> 00:00:19,759
Speaker 1: with the tax centering on crime and race, she will

6
00:00:19,800 --> 00:00:22,360
Speaker 1: be confirmed to be the first black woman to be

7
00:00:22,400 --> 00:00:26,200
Speaker 1: a Supreme Court justice because the Democrats have the votes.

8
00:00:27,000 --> 00:00:29,600
Speaker 1: Here's Judge Jackson on what she'll bring to the court.

9
00:00:30,160 --> 00:00:33,840
Speaker 1: What I would hope to bring to the Supreme Court

10
00:00:34,640 --> 00:00:39,600
Speaker 1: um is very similar to what a hundred and fifteen

11
00:00:39,960 --> 00:00:45,480
Speaker 1: other justices have brought, which is their life experiences, their

12
00:00:45,520 --> 00:00:52,400
Speaker 1: perspectives and mine include being a trial judge, being an

13
00:00:52,440 --> 00:00:58,600
Speaker 1: appellate judge, being a public defender, being a member of

14
00:00:58,640 --> 00:01:03,240
Speaker 1: the Sentencing commission um. In addition to my being a

15
00:01:03,280 --> 00:01:09,920
Speaker 1: black woman. Uh lucky inheritor of the civil rights dream.

16
00:01:10,000 --> 00:01:12,280
Speaker 1: Joining me is Adam Winkler, a professor at u c

17
00:01:12,440 --> 00:01:16,840
Speaker 1: l A law school. Start by in general, give me

18
00:01:16,880 --> 00:01:21,039
Speaker 1: your opinion of Judge Jackson and how she will how

19
00:01:21,120 --> 00:01:24,560
Speaker 1: she would fare as the next Supreme Court justice. Well,

20
00:01:24,600 --> 00:01:27,720
Speaker 1: there seems to be no doubt that Judge Brown Jackson

21
00:01:28,000 --> 00:01:31,639
Speaker 1: is a very well qualified nominee to the Supreme Court,

22
00:01:31,800 --> 00:01:34,800
Speaker 1: as she has a lot of judicial experience. She brings

23
00:01:34,800 --> 00:01:37,800
Speaker 1: a diversity not just in terms of her racial identity,

24
00:01:37,840 --> 00:01:40,360
Speaker 1: but also in terms of her perspective, having been on

25
00:01:40,400 --> 00:01:43,680
Speaker 1: the Sentencing Commission, having been a public defender, never had

26
00:01:43,720 --> 00:01:47,280
Speaker 1: a public defender on the Supreme Court. In other ways,

27
00:01:47,280 --> 00:01:50,240
Speaker 1: she's very much a standard candidate for the Supreme Court

28
00:01:50,240 --> 00:01:52,600
Speaker 1: in the sense that she comes from a background of

29
00:01:52,640 --> 00:01:56,080
Speaker 1: being a judge, primarily in recent years from the District

30
00:01:56,120 --> 00:01:58,440
Speaker 1: Court and then onto the d C Circuit, and comes

31
00:01:58,480 --> 00:02:02,040
Speaker 1: from Harvard Law School, like ow many justices these days

32
00:02:02,120 --> 00:02:04,960
Speaker 1: come from the very very top law schools. So she

33
00:02:05,000 --> 00:02:08,280
Speaker 1: meets the traditional requirements but also has some elements of

34
00:02:08,320 --> 00:02:11,160
Speaker 1: her path to give her a slightly different perspective. In

35
00:02:11,200 --> 00:02:14,760
Speaker 1: her opening statement, she referred to her nomination as historic

36
00:02:15,200 --> 00:02:18,200
Speaker 1: and said that she would be a fair and neutral arbiter.

37
00:02:18,880 --> 00:02:22,560
Speaker 1: What did you see in her opening statement and what

38
00:02:22,760 --> 00:02:26,680
Speaker 1: she addressed about her role as a judge. Well, I

39
00:02:26,720 --> 00:02:28,880
Speaker 1: think what we see in her opening statement is what

40
00:02:28,960 --> 00:02:32,200
Speaker 1: we see so many Supreme Court nominees lately, which is

41
00:02:32,320 --> 00:02:38,320
Speaker 1: kind of very uncontroversial statements that they will be neutral arbiters,

42
00:02:38,520 --> 00:02:41,760
Speaker 1: as Chief Justice John Roberts said in his confirmation hearing

43
00:02:41,800 --> 00:02:45,160
Speaker 1: is just an umpire calling falls and strikes. The truth is,

44
00:02:45,200 --> 00:02:48,000
Speaker 1: we all know that judges really do approach cases with

45
00:02:48,080 --> 00:02:53,040
Speaker 1: their values philosophy, influenced and informed by their own experiences,

46
00:02:53,120 --> 00:02:56,640
Speaker 1: and the sort of anodyne perspective on what judging is

47
00:02:56,680 --> 00:02:59,000
Speaker 1: just a neutral arbiter, almost like a machine that you

48
00:02:59,040 --> 00:03:01,080
Speaker 1: can just put in and fromation and get the right

49
00:03:01,120 --> 00:03:03,519
Speaker 1: answer out of. It. Seems to be what senators want

50
00:03:03,560 --> 00:03:06,840
Speaker 1: these days, but certainly doesn't accurately describe what any justice

51
00:03:06,880 --> 00:03:10,720
Speaker 1: will do, either Justice Jackson or any other. Yeah, the

52
00:03:10,760 --> 00:03:16,519
Speaker 1: Republicans seem to be looking to get her judicial philosophy. Now,

53
00:03:16,840 --> 00:03:19,040
Speaker 1: I don't know if they're referring to is she a

54
00:03:19,040 --> 00:03:24,160
Speaker 1: textualist or something else? Would a Supreme Court nominee explain

55
00:03:24,280 --> 00:03:28,000
Speaker 1: their judicial philosophy that way? Have the textualists done that

56
00:03:28,040 --> 00:03:31,360
Speaker 1: in the past. Well, we have had justices in the

57
00:03:31,400 --> 00:03:35,760
Speaker 1: past to describe their judicial philosophy as originalists or textualists.

58
00:03:36,040 --> 00:03:39,240
Speaker 1: But the truth of the matter is that justices and

59
00:03:39,280 --> 00:03:43,080
Speaker 1: their nominees do not want to get into their philosophies

60
00:03:43,160 --> 00:03:45,480
Speaker 1: of how they are going to decide cases with any

61
00:03:45,600 --> 00:03:50,040
Speaker 1: kind of specificity less they lose political support. It is

62
00:03:50,120 --> 00:03:53,320
Speaker 1: one of these things where in the confirmation hearings, if

63
00:03:53,360 --> 00:03:56,280
Speaker 1: you have something controversial to say, your best bet is

64
00:03:56,320 --> 00:03:58,680
Speaker 1: just not to say it at all and hope that

65
00:03:58,720 --> 00:04:02,200
Speaker 1: you have the votes to get through a Nonetheless, given

66
00:04:02,440 --> 00:04:08,120
Speaker 1: a Judge Jackson's incredible background and clear qualifications, barring any

67
00:04:08,160 --> 00:04:13,160
Speaker 1: kind of obvious misstep, saying something very controversial and unnecessary

68
00:04:13,200 --> 00:04:16,480
Speaker 1: in these hearings, she seems certain to be confirmed. So

69
00:04:16,520 --> 00:04:19,880
Speaker 1: there's really no gain for justices to get in at

70
00:04:19,960 --> 00:04:22,600
Speaker 1: least in depth in their philosophy if it might cost

71
00:04:22,640 --> 00:04:27,200
Speaker 1: them a vote. Republicans are using this soft on crime

72
00:04:27,240 --> 00:04:32,560
Speaker 1: attack sort of as a way also of attacking President

73
00:04:32,640 --> 00:04:36,160
Speaker 1: Biden's commitment to law and order. Will that work for

74
00:04:36,240 --> 00:04:39,680
Speaker 1: them in her case? Well, I guess it depends what

75
00:04:39,760 --> 00:04:42,200
Speaker 1: you mean, June by work for them. I think in

76
00:04:42,240 --> 00:04:46,240
Speaker 1: the sense that they're not really going to derail this nomination.

77
00:04:46,400 --> 00:04:48,919
Speaker 1: I don't think they think they're going to derail this nomination.

78
00:04:48,960 --> 00:04:51,360
Speaker 1: I think what works for them is using these confirmation

79
00:04:51,440 --> 00:04:55,280
Speaker 1: hearings as an opportunity to make political speeches. To get

80
00:04:55,360 --> 00:04:59,359
Speaker 1: your ten minutes of quotes in the various advertisements and

81
00:04:59,440 --> 00:05:02,599
Speaker 1: Fox news is and promoted by the local political party

82
00:05:02,640 --> 00:05:09,280
Speaker 1: on Twitter or whatnot, and really not about examining the experiences, perspectives,

83
00:05:09,320 --> 00:05:12,440
Speaker 1: and philosophies of the nominees. And so we see that

84
00:05:12,520 --> 00:05:14,479
Speaker 1: over and over again, and it's frankly, it's not just

85
00:05:14,560 --> 00:05:17,080
Speaker 1: a Republican thing, it's a democratic thing too. We saw

86
00:05:17,160 --> 00:05:20,000
Speaker 1: that in with regards to the Trump nominees to the

87
00:05:20,040 --> 00:05:23,599
Speaker 1: Supreme Court, that Democrats were trying to tie the nominee

88
00:05:23,600 --> 00:05:27,320
Speaker 1: to the policies of the Trump administration. This is basically

89
00:05:27,320 --> 00:05:31,320
Speaker 1: what the confirmation hearings have become, basically forums for senators

90
00:05:31,320 --> 00:05:35,239
Speaker 1: to make political speeches that relate or not relate depending

91
00:05:35,240 --> 00:05:39,200
Speaker 1: on the particular question to the nominee at hand. So

92
00:05:39,440 --> 00:05:42,960
Speaker 1: the Republicans, one after the others said they weren't going

93
00:05:43,000 --> 00:05:45,960
Speaker 1: to make this a controversial hearing. They weren't going to

94
00:05:46,040 --> 00:05:50,000
Speaker 1: attack her as some of their nominees have been attacked.

95
00:05:50,080 --> 00:05:55,400
Speaker 1: And yet Senator Josh Holly started a Twitter storm last

96
00:05:55,440 --> 00:06:00,320
Speaker 1: week that criticized her sentencing of defendants convey did of

97
00:06:00,360 --> 00:06:04,000
Speaker 1: the possession of child pornography. Does that seem to be

98
00:06:04,600 --> 00:06:08,320
Speaker 1: a personal attack. Well, we are seeing attacks on her

99
00:06:08,440 --> 00:06:12,919
Speaker 1: character and on her background, often sometimes scurless attacks. I

100
00:06:12,920 --> 00:06:17,839
Speaker 1: think Marcia Blackburn, the Senator UH on Monday, accused Judge

101
00:06:17,920 --> 00:06:20,720
Speaker 1: Jackson of a whole bunch of things that we're based on,

102
00:06:21,160 --> 00:06:25,000
Speaker 1: a sort of scurless accusations, quotes taken out of contact,

103
00:06:25,360 --> 00:06:29,280
Speaker 1: putting at her feet responsibility for things like transgender rights,

104
00:06:29,279 --> 00:06:31,960
Speaker 1: even though she's never ruled on a transgender rights case

105
00:06:32,000 --> 00:06:35,080
Speaker 1: in any way. And so we do see these kinds

106
00:06:35,160 --> 00:06:39,640
Speaker 1: of attacks because this sort of plays to the political base.

107
00:06:40,120 --> 00:06:42,960
Speaker 1: Even the Republicans said they're not going to attack her personally,

108
00:06:43,200 --> 00:06:45,640
Speaker 1: of course, they're going to attack her and are attacking her.

109
00:06:46,000 --> 00:06:48,960
Speaker 1: It's true they're not commenting on her history of sexual

110
00:06:49,000 --> 00:06:52,240
Speaker 1: assault like a previous nominee, but that's because there are

111
00:06:52,279 --> 00:06:55,800
Speaker 1: no credible allegations of such things. The Republicans keep on

112
00:06:55,880 --> 00:06:59,200
Speaker 1: bringing up the Kavanaugh hearings. They seem to be forgetting

113
00:06:59,480 --> 00:07:03,760
Speaker 1: the Amy Coney Barrett hearings, which, as I recall, we're

114
00:07:04,040 --> 00:07:08,039
Speaker 1: a pretty restrained affair. That's right, and we often see

115
00:07:08,080 --> 00:07:11,360
Speaker 1: Republicans harkening back to the Judge Bork hearings without talking

116
00:07:11,400 --> 00:07:14,120
Speaker 1: about any of the other Republican justices around that same

117
00:07:14,160 --> 00:07:17,120
Speaker 1: time who did get through without the kind of questioning

118
00:07:17,640 --> 00:07:21,040
Speaker 1: that Robert Bork cat It is true that it seems

119
00:07:21,080 --> 00:07:23,680
Speaker 1: that more and more Senators want to use their opportunity

120
00:07:23,720 --> 00:07:29,240
Speaker 1: to question a nominee to sort of relitigate past confirmation battles,

121
00:07:29,360 --> 00:07:32,080
Speaker 1: and even in ways that aren't aren't accurate. Amy Coming

122
00:07:32,120 --> 00:07:35,480
Speaker 1: Barrett was never asked about her faith in her Supreme

123
00:07:35,560 --> 00:07:38,840
Speaker 1: Court nomination process. She had been asked about it in

124
00:07:38,840 --> 00:07:42,400
Speaker 1: a previous confirmation process for a different position, but not

125
00:07:42,480 --> 00:07:46,360
Speaker 1: in her Supreme Court justice confirmation process. But Lindsay Graham

126
00:07:46,440 --> 00:07:50,240
Speaker 1: asked of the faith of the judge Jackson, showing a

127
00:07:50,360 --> 00:07:53,640
Speaker 1: kind of a willingness to make accusations but yet do

128
00:07:53,760 --> 00:07:56,120
Speaker 1: the exact same thing you accused the others of doing.

129
00:07:56,680 --> 00:08:00,440
Speaker 1: He also asked how faithful are you on a scale

130
00:08:00,440 --> 00:08:03,600
Speaker 1: of one to ten, And of course you didn't answer that.

131
00:08:03,640 --> 00:08:07,640
Speaker 1: But I thought that was a strange question at a

132
00:08:07,760 --> 00:08:11,800
Speaker 1: judiciary hearing. It does seem like a strange question. And

133
00:08:11,880 --> 00:08:14,160
Speaker 1: what does it really mean? Are you full of faith

134
00:08:14,240 --> 00:08:17,000
Speaker 1: to God? Are you faithful to your spouse? Like? What

135
00:08:17,040 --> 00:08:20,600
Speaker 1: what exactly is Lindsay Graham getting out? It's not really clear.

136
00:08:20,680 --> 00:08:23,840
Speaker 1: But again, one thing that is clear that the confirmation

137
00:08:23,880 --> 00:08:26,360
Speaker 1: process is broken, and the truth is it's been broken

138
00:08:26,400 --> 00:08:28,720
Speaker 1: for a long time, and maybe we shouldn't expect more

139
00:08:28,880 --> 00:08:32,520
Speaker 1: given its history. You know, the first confirmation hearings for

140
00:08:32,679 --> 00:08:36,760
Speaker 1: a Supreme Court justice came after the nomination of Lewis

141
00:08:36,840 --> 00:08:40,680
Speaker 1: brandeis the first Jewish person who was nominated for the

142
00:08:40,720 --> 00:08:43,480
Speaker 1: Supreme Court, and it was clearly a reflection of a

143
00:08:43,559 --> 00:08:47,200
Speaker 1: fear of this sort of Jewish radicalism. Then confirmation hearings

144
00:08:47,240 --> 00:08:51,320
Speaker 1: didn't really ratchet up and involve the participation of the

145
00:08:51,400 --> 00:08:55,520
Speaker 1: nominee himself really until after Brown versus Board of Education

146
00:08:55,760 --> 00:08:58,920
Speaker 1: nineteen fifty five, when John M. Harland was nominated at

147
00:08:58,920 --> 00:09:01,480
Speaker 1: the Supreme Court. All of the sudden, now senators like

148
00:09:01,520 --> 00:09:05,040
Speaker 1: Strong Thurman wanted to have questioning of the nominee and

149
00:09:05,040 --> 00:09:07,760
Speaker 1: to make sure they had the proper judicial philosophy. So

150
00:09:07,960 --> 00:09:11,480
Speaker 1: we've often seen the confirmation hearings be an effort by

151
00:09:11,760 --> 00:09:16,440
Speaker 1: political coalition to try to retain and keep control of

152
00:09:16,480 --> 00:09:22,679
Speaker 1: the Supreme Court, except for the Kavanaugh hearings, where the

153
00:09:22,760 --> 00:09:27,400
Speaker 1: accusations of sexual misconduct were raised during the hearings. Have

154
00:09:27,559 --> 00:09:32,080
Speaker 1: any of these hearings elucidated something new about the candidate,

155
00:09:32,240 --> 00:09:36,240
Speaker 1: or is it usually just everything we know being talked

156
00:09:36,240 --> 00:09:39,840
Speaker 1: about over and over. Well, I do think that candidates

157
00:09:40,040 --> 00:09:42,880
Speaker 1: have been trained not to say anything. That the system

158
00:09:42,960 --> 00:09:46,720
Speaker 1: has been designed by presidents and their political parties and

159
00:09:47,240 --> 00:09:49,680
Speaker 1: their advisors to just get through and if you've got

160
00:09:49,720 --> 00:09:52,439
Speaker 1: the votes going in, then don't say anything controversial and

161
00:09:52,480 --> 00:09:54,760
Speaker 1: don't say anything that could get you in trouble. That's

162
00:09:55,000 --> 00:09:56,839
Speaker 1: sort of one of the lessons that has seemed to

163
00:09:56,840 --> 00:09:59,760
Speaker 1: have come out of the confirmation process in recent years.

164
00:10:00,120 --> 00:10:04,040
Speaker 1: And as the confirmation of a justice becomes just another

165
00:10:04,240 --> 00:10:08,439
Speaker 1: partisan issue in American political life, one that divides deeply

166
00:10:08,600 --> 00:10:12,040
Speaker 1: different coalitions and makes it very hard for people to

167
00:10:12,080 --> 00:10:15,920
Speaker 1: cross party line, really we shouldn't really expect anything more.

168
00:10:17,000 --> 00:10:21,720
Speaker 1: How important is it that she gets some Republican votes,

169
00:10:22,120 --> 00:10:25,120
Speaker 1: or at least one Republican vote. I don't think it

170
00:10:25,160 --> 00:10:27,839
Speaker 1: really matters very much. I don't think that if she

171
00:10:27,920 --> 00:10:30,240
Speaker 1: gets one or two Republican votes, it all of a

172
00:10:30,280 --> 00:10:34,200
Speaker 1: sudden means that her nomination was one that satisfied the

173
00:10:34,280 --> 00:10:37,600
Speaker 1: conservative movement or the Republican Party, And it certainly won't

174
00:10:37,600 --> 00:10:41,440
Speaker 1: show that the Republican Party is willing to bend on

175
00:10:41,760 --> 00:10:45,760
Speaker 1: judicial nominees of the Democrats simply because one or two

176
00:10:45,800 --> 00:10:49,680
Speaker 1: people might vote in her favor. Um. She is clearly

177
00:10:49,679 --> 00:10:54,000
Speaker 1: an eminently qualified candidate, and just as Republicans have been

178
00:10:54,040 --> 00:10:58,079
Speaker 1: able to get their candidates through pretty consistently um in

179
00:10:58,240 --> 00:11:01,680
Speaker 1: the Supreme Court confirmation process, I imagine that she'll get

180
00:11:01,679 --> 00:11:05,920
Speaker 1: through with maybe exclusively Democratic votes, maybe one or two Republicans.

181
00:11:05,960 --> 00:11:07,760
Speaker 1: The only thing I hope that comes out of it

182
00:11:07,880 --> 00:11:10,880
Speaker 1: is that we don't see a nominee who finds that

183
00:11:11,120 --> 00:11:14,760
Speaker 1: because of the process they are changed, that they become

184
00:11:15,200 --> 00:11:18,120
Speaker 1: a different person than they might otherwise be. It sometimes

185
00:11:18,120 --> 00:11:21,120
Speaker 1: said that Clarence Thomas became very bitter after his confirmation

186
00:11:21,160 --> 00:11:24,640
Speaker 1: hearing and hardened his views on some issues. I don't

187
00:11:24,640 --> 00:11:26,360
Speaker 1: know if that's true or not, but it's been said,

188
00:11:26,400 --> 00:11:29,880
Speaker 1: and certainly there was concerned after Brett Kavanaugh railed against

189
00:11:29,920 --> 00:11:32,839
Speaker 1: Democrats for their attack on him and the confirmation hearing,

190
00:11:33,240 --> 00:11:36,840
Speaker 1: promising payback, which raised questions about whether as a justice,

191
00:11:36,880 --> 00:11:40,120
Speaker 1: he would be motivated by a desire for revenge in

192
00:11:40,200 --> 00:11:43,080
Speaker 1: these kinds of confirmation hearing. If so, it shows one

193
00:11:43,120 --> 00:11:47,200
Speaker 1: of the dangers of having this very highly politicized process.

194
00:11:47,400 --> 00:11:49,920
Speaker 1: Thanks for being on the show Adam. That's Professor Adam

195
00:11:49,960 --> 00:11:54,200
Speaker 1: Winkler of u c. L A Law School. This week,

196
00:11:54,280 --> 00:11:57,720
Speaker 1: the Supreme Court considered whether a group of five hundred

197
00:11:57,720 --> 00:12:02,400
Speaker 1: Taco Bell employees had to arbitrate overtime claims against a

198
00:12:02,480 --> 00:12:06,280
Speaker 1: Taco Bell franchise rather than press them in federal court.

199
00:12:06,520 --> 00:12:09,280
Speaker 1: The case centers on the waiver of rides by failing

200
00:12:09,320 --> 00:12:13,880
Speaker 1: to promptly invoke arbitration early in litigation. The Taco Bell

201
00:12:14,000 --> 00:12:17,680
Speaker 1: employees say they've been cheated out of overtime paid by Sundance,

202
00:12:18,000 --> 00:12:22,280
Speaker 1: the company that owns about one fifty Taco Bell franchises.

203
00:12:22,960 --> 00:12:26,520
Speaker 1: The case proceeded in federal court for nearly eight months

204
00:12:26,520 --> 00:12:30,480
Speaker 1: before the company invoked an arbitration provision in its standard

205
00:12:30,520 --> 00:12:36,080
Speaker 1: form employment contract. Confusion seemed to reign during the oral arguments,

206
00:12:36,120 --> 00:12:41,000
Speaker 1: although Justice Stephen Bryer seemed to best explain the controversy.

207
00:12:41,200 --> 00:12:44,080
Speaker 1: I mean, you had an arbitration agreement, so what you

208
00:12:44,120 --> 00:12:47,800
Speaker 1: decided to do with brial lawsuit? And nobody said anything

209
00:12:47,800 --> 00:12:51,240
Speaker 1: further for quite a while, and then finally the other

210
00:12:51,280 --> 00:12:55,000
Speaker 1: side said, let's quote arbitration and were they too late?

211
00:12:55,840 --> 00:13:01,160
Speaker 1: Now that kind of situation, I bet arises fairly frequently. Okay,

212
00:13:01,640 --> 00:13:05,040
Speaker 1: Now we're starting to create a matrix of rules through

213
00:13:05,080 --> 00:13:10,160
Speaker 1: your logic. It is so complicated that that that it's

214
00:13:10,320 --> 00:13:12,320
Speaker 1: at least hard for a lay person like me in

215
00:13:12,320 --> 00:13:16,240
Speaker 1: this area to understand. And what's worrying me is that

216
00:13:16,280 --> 00:13:19,120
Speaker 1: my instinctive answer, which you will tell me is wrong.

217
00:13:19,160 --> 00:13:24,440
Speaker 1: If it's wrong, is it depends? My guest is Mark Rifkin,

218
00:13:24,600 --> 00:13:27,800
Speaker 1: a partner Wolf Haul and Stein. First of all, tell

219
00:13:27,920 --> 00:13:31,920
Speaker 1: us why Taco Bell is being sued. Yeah, So this

220
00:13:32,040 --> 00:13:35,600
Speaker 1: is a labor case where the plaintiff, the lleges violation

221
00:13:35,880 --> 00:13:39,400
Speaker 1: of wage and our law. And it's a case that

222
00:13:39,559 --> 00:13:43,320
Speaker 1: was related to a second case by a different employee

223
00:13:43,360 --> 00:13:47,240
Speaker 1: in a different state, also against the same company, Sundance

224
00:13:47,640 --> 00:13:51,320
Speaker 1: for violating the wagean arrow laws in Michigan. So the

225
00:13:51,440 --> 00:13:54,360
Speaker 1: Iowa case that's in front of the Supreme Court now

226
00:13:54,520 --> 00:13:58,200
Speaker 1: was related to the Michigan case brought by a different employee,

227
00:13:58,280 --> 00:14:02,640
Speaker 1: both of whom alleged wage our law violations. And what's

228
00:14:02,679 --> 00:14:06,800
Speaker 1: the basic issue in the case. So the question in

229
00:14:06,840 --> 00:14:09,599
Speaker 1: the case, as I understand it, although I have to

230
00:14:09,640 --> 00:14:12,840
Speaker 1: confess after listening to the to the argument, I'm not

231
00:14:12,920 --> 00:14:16,000
Speaker 1: sure that anyone understands it. But the question in the

232
00:14:16,000 --> 00:14:21,200
Speaker 1: case is whether a court can require either party to

233
00:14:21,320 --> 00:14:27,320
Speaker 1: an arbitration agreement to demonstrate prejudice to the other party.

234
00:14:27,360 --> 00:14:31,480
Speaker 1: If the party seeking to compel arbitration in this case

235
00:14:31,480 --> 00:14:35,040
Speaker 1: it was Taco Bell, it was Sundance. If if the

236
00:14:35,080 --> 00:14:39,240
Speaker 1: party seeking to compel arbitration has waived its right to

237
00:14:39,280 --> 00:14:45,280
Speaker 1: do so by participating in litigation in court before asking

238
00:14:45,560 --> 00:14:50,240
Speaker 1: that the matter be referred to arbitration, and so in

239
00:14:50,280 --> 00:14:54,360
Speaker 1: this case just briefly because the proceedings get confusing, but

240
00:14:54,760 --> 00:14:59,400
Speaker 1: briefly describe what happened to make the plaintiff say that

241
00:14:59,640 --> 00:15:06,400
Speaker 1: tak Abel had engaged in litigation beforehand. Sure, so Morgan

242
00:15:06,480 --> 00:15:10,200
Speaker 1: files a complaint and says that the Sundance has engaged

243
00:15:10,240 --> 00:15:14,840
Speaker 1: in this wage an hour violation. Sundance answers the complaint

244
00:15:14,880 --> 00:15:20,840
Speaker 1: does not assert the arbitration agreement that is in Morgan's

245
00:15:20,840 --> 00:15:27,320
Speaker 1: employment contract, and the case proceeds. It gets coordinated with

246
00:15:27,880 --> 00:15:31,560
Speaker 1: the case in Michigan by Wood, also a wage an

247
00:15:31,560 --> 00:15:36,240
Speaker 1: hour case where Sundance was the defendant, and like they

248
00:15:36,280 --> 00:15:40,640
Speaker 1: did with Morgan, they didn't assert any arbitration agreement in

249
00:15:40,680 --> 00:15:43,840
Speaker 1: their answer. In the Wood case either, both cases were

250
00:15:44,200 --> 00:15:50,120
Speaker 1: sent off to the mediation where would settled. The case

251
00:15:50,200 --> 00:15:52,960
Speaker 1: that was pending in Michigan, the Morgan case, the case

252
00:15:53,000 --> 00:15:54,920
Speaker 1: that's now in front of the Supreme Court, went back

253
00:15:54,960 --> 00:16:00,520
Speaker 1: to Iowa where the defendant sun Dance, then, after an

254
00:16:00,600 --> 00:16:04,720
Speaker 1: unsuccessful attempt to mediate a settlement, then try to compel

255
00:16:05,320 --> 00:16:10,760
Speaker 1: arbitration under Morgan's employment agreement. And Morgan says, well, wait

256
00:16:10,760 --> 00:16:14,040
Speaker 1: a minute. You waive that right by not asserting it

257
00:16:14,120 --> 00:16:17,880
Speaker 1: sooner and by invoking the litigation mechanism. It's too late

258
00:16:17,880 --> 00:16:21,520
Speaker 1: for you to insist on arbitration now, and that has

259
00:16:21,600 --> 00:16:24,440
Speaker 1: led to the dispute that the Supreme Court now has

260
00:16:24,440 --> 00:16:28,120
Speaker 1: in front of it. The District Court agreed with Morgan

261
00:16:28,560 --> 00:16:32,120
Speaker 1: that Sundance waived the arbitration provision, but the Sixth Circuit

262
00:16:32,240 --> 00:16:36,760
Speaker 1: disagreed and said no, Morgan failed to demonstrate any prejudice

263
00:16:37,120 --> 00:16:41,080
Speaker 1: and therefore no waiver had taken place. And Morgan's answer is,

264
00:16:41,120 --> 00:16:43,920
Speaker 1: will wait a minute. Nobody else has to show prejudice

265
00:16:44,000 --> 00:16:46,680
Speaker 1: in the case of waiver. Why are we treating arbitration

266
00:16:47,000 --> 00:16:50,720
Speaker 1: agreements different than any other kind of contractual agreement where

267
00:16:51,000 --> 00:16:54,600
Speaker 1: prejudice isn't required to demonstrate waiver? And that's the issue

268
00:16:54,680 --> 00:16:58,240
Speaker 1: that presumably the Supreme Court was going to decide. So,

269
00:16:58,360 --> 00:17:01,760
Speaker 1: mark are the circuits split on whether or not prejudice

270
00:17:01,840 --> 00:17:06,560
Speaker 1: is required here? There is disagreement about whether prejudice can

271
00:17:06,640 --> 00:17:11,200
Speaker 1: be required or not. And so the principle that the

272
00:17:11,320 --> 00:17:15,000
Speaker 1: Court should have, in my view, should have considered is

273
00:17:15,000 --> 00:17:18,119
Speaker 1: whether requiring prejudice to show waiver in the context of

274
00:17:18,160 --> 00:17:24,360
Speaker 1: an arbitration agreement treats arbitration agreements differently than all other agreements.

275
00:17:24,400 --> 00:17:27,639
Speaker 1: That would be a violation of Section two of the

276
00:17:28,000 --> 00:17:33,760
Speaker 1: Federal Arbitration Act, which essentially requires that arbitration agreements beat

277
00:17:33,840 --> 00:17:38,000
Speaker 1: on equal footing with all other contracts. This places arbitration

278
00:17:38,080 --> 00:17:42,840
Speaker 1: agreements in a preferred status because it imposes an additional

279
00:17:42,920 --> 00:17:46,879
Speaker 1: requirement on a partner trying to show that the agreement

280
00:17:46,960 --> 00:17:50,760
Speaker 1: was waived. The Supreme Court arguments the justices that we're

281
00:17:50,800 --> 00:17:56,040
Speaker 1: talking about state law versus federal law about whether the

282
00:17:56,119 --> 00:17:58,919
Speaker 1: arbitration agreement is valid and forcible. I mean, did you

283
00:17:58,960 --> 00:18:03,200
Speaker 1: get any feel after the arguments of what they are

284
00:18:03,320 --> 00:18:08,160
Speaker 1: concerned about. I honestly had a feeling throughout the entire

285
00:18:08,280 --> 00:18:14,320
Speaker 1: argument of being Alice in Wonderland, because the entire premise

286
00:18:14,720 --> 00:18:18,240
Speaker 1: of the argument was that arbitration agreements have to be

287
00:18:18,359 --> 00:18:22,040
Speaker 1: on equal footing with all other agreements, except when they don't.

288
00:18:22,600 --> 00:18:27,119
Speaker 1: And then we went into this whole discussion about weather

289
00:18:27,760 --> 00:18:32,720
Speaker 1: Section three of the f a A, which says that

290
00:18:33,280 --> 00:18:37,240
Speaker 1: any party may compel arbitration if that party is not

291
00:18:37,840 --> 00:18:42,679
Speaker 1: in the fall of something. It doesn't say what, and

292
00:18:42,760 --> 00:18:45,560
Speaker 1: the court then tried to figure out what that meant.

293
00:18:45,920 --> 00:18:48,680
Speaker 1: And you know, I was thinking to myself, why why

294
00:18:48,720 --> 00:18:52,640
Speaker 1: are they isolating Section two in section three, as though

295
00:18:53,200 --> 00:18:57,119
Speaker 1: those provisions should be read separately and independently. And I

296
00:18:57,200 --> 00:19:00,600
Speaker 1: kept thinking, So, if I'm driving down the highway and

297
00:19:00,680 --> 00:19:03,920
Speaker 1: I get pulled over for speeding, you know, the law

298
00:19:04,000 --> 00:19:07,359
Speaker 1: requires that I observed the speed limits, and it also

299
00:19:07,400 --> 00:19:10,000
Speaker 1: requires that I use the turn signal when I change

300
00:19:10,040 --> 00:19:12,439
Speaker 1: from one lane to another line. I have to do both.

301
00:19:12,720 --> 00:19:15,200
Speaker 1: And so if I get pulled over for speeding, I

302
00:19:15,240 --> 00:19:18,840
Speaker 1: can't say to the judge, who here's my case, but

303
00:19:18,960 --> 00:19:21,719
Speaker 1: I use my turn signal, I use my turn signal.

304
00:19:22,000 --> 00:19:25,800
Speaker 1: I have to satisfy both requirements. And it seems to

305
00:19:25,840 --> 00:19:29,320
Speaker 1: me that the court and the parties tried to split

306
00:19:29,359 --> 00:19:34,320
Speaker 1: this up piecemeal, and we lost sight of the whole issue,

307
00:19:34,400 --> 00:19:37,679
Speaker 1: which I think is, you know, it's just a simple question.

308
00:19:38,119 --> 00:19:43,920
Speaker 1: It's sun danced knowingly and intentionally manifest an intention to

309
00:19:44,800 --> 00:19:49,960
Speaker 1: abandon its right to insist on arbitration. If it did that,

310
00:19:49,960 --> 00:19:53,200
Speaker 1: that ends the question. If it didn't do that, then

311
00:19:53,240 --> 00:19:56,280
Speaker 1: the party should be sent to arbitration. The argument got

312
00:19:56,320 --> 00:19:59,920
Speaker 1: so complicated and so convoluted. I don't know that any

313
00:20:00,000 --> 00:20:03,400
Speaker 1: one can understand it. Now, where does prejudice fit into

314
00:20:03,400 --> 00:20:07,000
Speaker 1: what you can say? The issue is so some states,

315
00:20:07,080 --> 00:20:10,080
Speaker 1: and New York is one of them, Some states say

316
00:20:10,119 --> 00:20:14,400
Speaker 1: that in order to demonstrate waiver of any contractual right,

317
00:20:14,800 --> 00:20:17,920
Speaker 1: there must be a clear manifestation of an intent by

318
00:20:17,960 --> 00:20:21,960
Speaker 1: the party who is waiving the right to relinquish a

319
00:20:22,040 --> 00:20:25,840
Speaker 1: known right. But in the arbitration context, New York says,

320
00:20:25,840 --> 00:20:29,440
Speaker 1: like many other states do, that the Federal Arbitration Act

321
00:20:29,760 --> 00:20:35,760
Speaker 1: also requires prejudice to the party opposing arbitration before an

322
00:20:35,840 --> 00:20:40,800
Speaker 1: arbitration clause may be waived. So there's this special layer

323
00:20:40,920 --> 00:20:44,240
Speaker 1: of proof that's put on a party to show that

324
00:20:44,359 --> 00:20:47,800
Speaker 1: an arbitration clause has been waived that doesn't exist in

325
00:20:47,880 --> 00:20:52,520
Speaker 1: any other contract where one party is claiming that the

326
00:20:52,560 --> 00:20:56,240
Speaker 1: other party has waived a contractual right, and that's that's

327
00:20:56,280 --> 00:20:59,480
Speaker 1: really the gist of the dispute. Which way do you

328
00:20:59,520 --> 00:21:03,800
Speaker 1: think it should come out? I think that if Section

329
00:21:03,880 --> 00:21:09,040
Speaker 1: two of the f a A means that arbitration agreements

330
00:21:09,080 --> 00:21:12,359
Speaker 1: have to be interpreted on equal footing with all other contracts,

331
00:21:12,400 --> 00:21:18,120
Speaker 1: that the prejudice requirement should apply if state law applies

332
00:21:18,200 --> 00:21:21,479
Speaker 1: that to all contract rights. So if if a state

333
00:21:21,640 --> 00:21:26,479
Speaker 1: law says that to demonstrate waiver of a contractual right,

334
00:21:26,760 --> 00:21:29,800
Speaker 1: a party has to show two things, first, a clear

335
00:21:29,800 --> 00:21:33,400
Speaker 1: intention on the part of the party that's waiving the right,

336
00:21:34,200 --> 00:21:40,520
Speaker 1: two intentionally and deliberately waive a known right, and also

337
00:21:41,440 --> 00:21:44,719
Speaker 1: must show that the party asserting waiver has been prejudiced,

338
00:21:45,440 --> 00:21:49,520
Speaker 1: then fine, then Section two is satisfied. But if the

339
00:21:49,560 --> 00:21:52,920
Speaker 1: state law says you have to show a clear intention

340
00:21:53,240 --> 00:21:57,440
Speaker 1: to relinquious and known right and you also must demonstrate

341
00:21:57,560 --> 00:22:01,800
Speaker 1: prejudice only in the context of an arbitration clause, then

342
00:22:01,840 --> 00:22:06,640
Speaker 1: I think the requirement of equal status under section two

343
00:22:06,680 --> 00:22:10,080
Speaker 1: of the f A has been violated. What's happening here

344
00:22:10,480 --> 00:22:14,760
Speaker 1: is that the Supreme Court is putting arbitration agreements in

345
00:22:15,119 --> 00:22:20,919
Speaker 1: a preferred class. They are giving special status to arbitration

346
00:22:20,960 --> 00:22:24,120
Speaker 1: agreements and if we look at this case and we

347
00:22:24,200 --> 00:22:27,439
Speaker 1: listen to that argument in any other way, we're not

348
00:22:27,520 --> 00:22:30,200
Speaker 1: seeing what's going on. It used to be the law

349
00:22:30,600 --> 00:22:35,320
Speaker 1: that the f a A Was intended to protect arbitration

350
00:22:35,359 --> 00:22:39,720
Speaker 1: agreements between sophisticated commercial parties, and to do that, the

351
00:22:39,800 --> 00:22:42,960
Speaker 1: law put those agreements on the same footing as all

352
00:22:42,960 --> 00:22:47,080
Speaker 1: other contracts. We've moved now so far beyond that that

353
00:22:47,320 --> 00:22:51,760
Speaker 1: in any context, in a commercial context, in a consumer context,

354
00:22:51,840 --> 00:22:55,880
Speaker 1: in any context. The Supreme Court now seems to think

355
00:22:56,440 --> 00:23:01,840
Speaker 1: that arbitration agreements have some special protected status above all

356
00:23:01,880 --> 00:23:05,000
Speaker 1: other contractual provisions. And that's the only way you can

357
00:23:05,080 --> 00:23:08,080
Speaker 1: understand what's happening in this case and what happened in

358
00:23:08,119 --> 00:23:10,760
Speaker 1: the argument. There's no other way to understand what was

359
00:23:10,760 --> 00:23:13,080
Speaker 1: going on. I mean, even the liberal judges on the

360
00:23:13,119 --> 00:23:16,920
Speaker 1: Court got lost in this debate about the Section three

361
00:23:16,920 --> 00:23:20,439
Speaker 1: applied to substantive law. Is it a procedural question, is

362
00:23:20,520 --> 00:23:23,720
Speaker 1: is a state law question? Is a federal question? None

363
00:23:23,720 --> 00:23:26,760
Speaker 1: of that matters unless in the back of your mind

364
00:23:26,800 --> 00:23:30,359
Speaker 1: you're saying to yourself arbitration agreements are special. Because if

365
00:23:30,359 --> 00:23:33,920
Speaker 1: you don't say that, you don't get past Section two.

366
00:23:34,440 --> 00:23:37,800
Speaker 1: And it's It's like me and my speeding ticket. Okay, sure,

367
00:23:37,840 --> 00:23:40,080
Speaker 1: I used a turn signal and I changed lanes, but

368
00:23:40,119 --> 00:23:43,040
Speaker 1: I was going a hundred four miles. It makes no

369
00:23:43,119 --> 00:23:46,719
Speaker 1: sense that we're breaking these things down into these isolated components,

370
00:23:47,080 --> 00:23:51,080
Speaker 1: except if you recognize that arbitration agreements are, you know,

371
00:23:51,200 --> 00:23:53,920
Speaker 1: above the law. Thanks for being on the show. Mark.

372
00:23:54,240 --> 00:23:57,879
Speaker 1: That's Mark riskin a partner Wolf Holdenstein, And that's it

373
00:23:57,920 --> 00:24:00,520
Speaker 1: for this edition of The Bloomberg Law Show. Remember you

374
00:24:00,560 --> 00:24:03,000
Speaker 1: can always get the latest legal news on our Bloomberg

375
00:24:03,119 --> 00:24:06,679
Speaker 1: Law Podcast. You can find them on Apple Podcasts, Spotify,

376
00:24:06,880 --> 00:24:11,920
Speaker 1: and at www dot Bloomberg dot com, slash podcast Slash Law,

377
00:24:12,320 --> 00:24:14,959
Speaker 1: and remember to tune into The Bloomberg Law Show every

378
00:24:15,000 --> 00:24:18,400
Speaker 1: week night at ten BM Wall Street Time. I'm June

379
00:24:18,440 --> 00:24:20,639
Speaker 1: Grosso and you're listening to Bloomberg