WEBVTT - Ketanji Brown Jackson Confirmation Hearings

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<v Speaker 1>You will and you will become a member of the U. S.

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<v Speaker 1>Supreme Court. That was Senator Patrick Leahy telling Supreme Court

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<v Speaker 1>nominique Tangi Brown Jackson that no matter of the ordeal

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<v Speaker 1>of her nomination hearings where Republican senators have barraged her

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<v Speaker 1>with the tax centering on crime and race, she will

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<v Speaker 1>be confirmed to be the first black woman to be

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<v Speaker 1>a Supreme Court justice because the Democrats have the votes.

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<v Speaker 1>Here's Judge Jackson on what she'll bring to the court.

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<v Speaker 1>What I would hope to bring to the Supreme Court

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<v Speaker 1>um is very similar to what a hundred and fifteen

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<v Speaker 1>other justices have brought, which is their life experiences, their

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<v Speaker 1>perspectives and mine include being a trial judge, being an

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<v Speaker 1>appellate judge, being a public defender, being a member of

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<v Speaker 1>the Sentencing commission um. In addition to my being a

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<v Speaker 1>black woman. Uh lucky inheritor of the civil rights dream.

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<v Speaker 1>Joining me is Adam Winkler, a professor at u c

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<v Speaker 1>l A law school. Start by in general, give me

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<v Speaker 1>your opinion of Judge Jackson and how she will how

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<v Speaker 1>she would fare as the next Supreme Court justice. Well,

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<v Speaker 1>there seems to be no doubt that Judge Brown Jackson

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<v Speaker 1>is a very well qualified nominee to the Supreme Court,

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<v Speaker 1>as she has a lot of judicial experience. She brings

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<v Speaker 1>a diversity not just in terms of her racial identity,

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<v Speaker 1>but also in terms of her perspective, having been on

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<v Speaker 1>the Sentencing Commission, having been a public defender, never had

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<v Speaker 1>a public defender on the Supreme Court. In other ways,

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<v Speaker 1>she's very much a standard candidate for the Supreme Court

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<v Speaker 1>in the sense that she comes from a background of

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<v Speaker 1>being a judge, primarily in recent years from the District

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<v Speaker 1>Court and then onto the d C Circuit, and comes

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<v Speaker 1>from Harvard Law School, like ow many justices these days

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<v Speaker 1>come from the very very top law schools. So she

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<v Speaker 1>meets the traditional requirements but also has some elements of

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<v Speaker 1>her path to give her a slightly different perspective. In

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<v Speaker 1>her opening statement, she referred to her nomination as historic

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<v Speaker 1>and said that she would be a fair and neutral arbiter.

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<v Speaker 1>What did you see in her opening statement and what

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<v Speaker 1>she addressed about her role as a judge. Well, I

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<v Speaker 1>think what we see in her opening statement is what

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<v Speaker 1>we see so many Supreme Court nominees lately, which is

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<v Speaker 1>kind of very uncontroversial statements that they will be neutral arbiters,

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<v Speaker 1>as Chief Justice John Roberts said in his confirmation hearing

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<v Speaker 1>is just an umpire calling falls and strikes. The truth is,

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<v Speaker 1>we all know that judges really do approach cases with

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<v Speaker 1>their values philosophy, influenced and informed by their own experiences,

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<v Speaker 1>and the sort of anodyne perspective on what judging is

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<v Speaker 1>just a neutral arbiter, almost like a machine that you

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<v Speaker 1>can just put in and fromation and get the right

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<v Speaker 1>answer out of. It. Seems to be what senators want

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<v Speaker 1>these days, but certainly doesn't accurately describe what any justice

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<v Speaker 1>will do, either Justice Jackson or any other. Yeah, the

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<v Speaker 1>Republicans seem to be looking to get her judicial philosophy. Now,

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<v Speaker 1>I don't know if they're referring to is she a

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<v Speaker 1>textualist or something else? Would a Supreme Court nominee explain

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<v Speaker 1>their judicial philosophy that way? Have the textualists done that

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<v Speaker 1>in the past. Well, we have had justices in the

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<v Speaker 1>past to describe their judicial philosophy as originalists or textualists.

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<v Speaker 1>But the truth of the matter is that justices and

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<v Speaker 1>their nominees do not want to get into their philosophies

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<v Speaker 1>of how they are going to decide cases with any

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<v Speaker 1>kind of specificity less they lose political support. It is

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<v Speaker 1>one of these things where in the confirmation hearings, if

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<v Speaker 1>you have something controversial to say, your best bet is

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<v Speaker 1>just not to say it at all and hope that

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<v Speaker 1>you have the votes to get through a Nonetheless, given

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<v Speaker 1>a Judge Jackson's incredible background and clear qualifications, barring any

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<v Speaker 1>kind of obvious misstep, saying something very controversial and unnecessary

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<v Speaker 1>in these hearings, she seems certain to be confirmed. So

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<v Speaker 1>there's really no gain for justices to get in at

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<v Speaker 1>least in depth in their philosophy if it might cost

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<v Speaker 1>them a vote. Republicans are using this soft on crime

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<v Speaker 1>attack sort of as a way also of attacking President

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<v Speaker 1>Biden's commitment to law and order. Will that work for

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<v Speaker 1>them in her case? Well, I guess it depends what

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<v Speaker 1>you mean, June by work for them. I think in

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<v Speaker 1>the sense that they're not really going to derail this nomination.

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<v Speaker 1>I don't think they think they're going to derail this nomination.

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<v Speaker 1>I think what works for them is using these confirmation

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<v Speaker 1>hearings as an opportunity to make political speeches. To get

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<v Speaker 1>your ten minutes of quotes in the various advertisements and

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<v Speaker 1>Fox news is and promoted by the local political party

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<v Speaker 1>on Twitter or whatnot, and really not about examining the experiences, perspectives,

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<v Speaker 1>and philosophies of the nominees. And so we see that

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<v Speaker 1>over and over again, and it's frankly, it's not just

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<v Speaker 1>a Republican thing, it's a democratic thing too. We saw

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<v Speaker 1>that in with regards to the Trump nominees to the

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<v Speaker 1>Supreme Court, that Democrats were trying to tie the nominee

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<v Speaker 1>to the policies of the Trump administration. This is basically

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<v Speaker 1>what the confirmation hearings have become, basically forums for senators

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<v Speaker 1>to make political speeches that relate or not relate depending

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<v Speaker 1>on the particular question to the nominee at hand. So

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<v Speaker 1>the Republicans, one after the others said they weren't going

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<v Speaker 1>to make this a controversial hearing. They weren't going to

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<v Speaker 1>attack her as some of their nominees have been attacked.

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<v Speaker 1>And yet Senator Josh Holly started a Twitter storm last

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<v Speaker 1>week that criticized her sentencing of defendants convey did of

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<v Speaker 1>the possession of child pornography. Does that seem to be

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<v Speaker 1>a personal attack. Well, we are seeing attacks on her

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<v Speaker 1>character and on her background, often sometimes scurless attacks. I

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<v Speaker 1>think Marcia Blackburn, the Senator UH on Monday, accused Judge

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<v Speaker 1>Jackson of a whole bunch of things that we're based on,

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<v Speaker 1>a sort of scurless accusations, quotes taken out of contact,

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<v Speaker 1>putting at her feet responsibility for things like transgender rights,

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<v Speaker 1>even though she's never ruled on a transgender rights case

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<v Speaker 1>in any way. And so we do see these kinds

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<v Speaker 1>of attacks because this sort of plays to the political base.

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<v Speaker 1>Even the Republicans said they're not going to attack her personally,

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<v Speaker 1>of course, they're going to attack her and are attacking her.

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<v Speaker 1>It's true they're not commenting on her history of sexual

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<v Speaker 1>assault like a previous nominee, but that's because there are

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<v Speaker 1>no credible allegations of such things. The Republicans keep on

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<v Speaker 1>bringing up the Kavanaugh hearings. They seem to be forgetting

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<v Speaker 1>the Amy Coney Barrett hearings, which, as I recall, we're

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<v Speaker 1>a pretty restrained affair. That's right, and we often see

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<v Speaker 1>Republicans harkening back to the Judge Bork hearings without talking

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<v Speaker 1>about any of the other Republican justices around that same

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<v Speaker 1>time who did get through without the kind of questioning

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<v Speaker 1>that Robert Bork cat It is true that it seems

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<v Speaker 1>that more and more Senators want to use their opportunity

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<v Speaker 1>to question a nominee to sort of relitigate past confirmation battles,

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<v Speaker 1>and even in ways that aren't aren't accurate. Amy Coming

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<v Speaker 1>Barrett was never asked about her faith in her Supreme

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<v Speaker 1>Court nomination process. She had been asked about it in

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<v Speaker 1>a previous confirmation process for a different position, but not

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<v Speaker 1>in her Supreme Court justice confirmation process. But Lindsay Graham

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<v Speaker 1>asked of the faith of the judge Jackson, showing a

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<v Speaker 1>kind of a willingness to make accusations but yet do

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<v Speaker 1>the exact same thing you accused the others of doing.

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<v Speaker 1>He also asked how faithful are you on a scale

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<v Speaker 1>of one to ten, And of course you didn't answer that.

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<v Speaker 1>But I thought that was a strange question at a

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<v Speaker 1>judiciary hearing. It does seem like a strange question. And

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<v Speaker 1>what does it really mean? Are you full of faith

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<v Speaker 1>to God? Are you faithful to your spouse? Like? What

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<v Speaker 1>what exactly is Lindsay Graham getting out? It's not really clear.

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<v Speaker 1>But again, one thing that is clear that the confirmation

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<v Speaker 1>process is broken, and the truth is it's been broken

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<v Speaker 1>for a long time, and maybe we shouldn't expect more

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<v Speaker 1>given its history. You know, the first confirmation hearings for

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<v Speaker 1>a Supreme Court justice came after the nomination of Lewis

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<v Speaker 1>brandeis the first Jewish person who was nominated for the

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<v Speaker 1>Supreme Court, and it was clearly a reflection of a

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<v Speaker 1>fear of this sort of Jewish radicalism. Then confirmation hearings

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<v Speaker 1>didn't really ratchet up and involve the participation of the

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<v Speaker 1>nominee himself really until after Brown versus Board of Education

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<v Speaker 1>nineteen fifty five, when John M. Harland was nominated at

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<v Speaker 1>the Supreme Court. All of the sudden, now senators like

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<v Speaker 1>Strong Thurman wanted to have questioning of the nominee and

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<v Speaker 1>to make sure they had the proper judicial philosophy. So

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<v Speaker 1>we've often seen the confirmation hearings be an effort by

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<v Speaker 1>political coalition to try to retain and keep control of

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<v Speaker 1>the Supreme Court, except for the Kavanaugh hearings, where the

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<v Speaker 1>accusations of sexual misconduct were raised during the hearings. Have

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<v Speaker 1>any of these hearings elucidated something new about the candidate,

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<v Speaker 1>or is it usually just everything we know being talked

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<v Speaker 1>about over and over. Well, I do think that candidates

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<v Speaker 1>have been trained not to say anything. That the system

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<v Speaker 1>has been designed by presidents and their political parties and

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<v Speaker 1>their advisors to just get through and if you've got

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<v Speaker 1>the votes going in, then don't say anything controversial and

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<v Speaker 1>don't say anything that could get you in trouble. That's

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<v Speaker 1>sort of one of the lessons that has seemed to

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<v Speaker 1>have come out of the confirmation process in recent years.

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<v Speaker 1>And as the confirmation of a justice becomes just another

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<v Speaker 1>partisan issue in American political life, one that divides deeply

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<v Speaker 1>different coalitions and makes it very hard for people to

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<v Speaker 1>cross party line, really we shouldn't really expect anything more.

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<v Speaker 1>How important is it that she gets some Republican votes,

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<v Speaker 1>or at least one Republican vote. I don't think it

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<v Speaker 1>really matters very much. I don't think that if she

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<v Speaker 1>gets one or two Republican votes, it all of a

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<v Speaker 1>sudden means that her nomination was one that satisfied the

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<v Speaker 1>conservative movement or the Republican Party, And it certainly won't

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<v Speaker 1>show that the Republican Party is willing to bend on

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<v Speaker 1>judicial nominees of the Democrats simply because one or two

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<v Speaker 1>people might vote in her favor. Um. She is clearly

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<v Speaker 1>an eminently qualified candidate, and just as Republicans have been

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<v Speaker 1>able to get their candidates through pretty consistently um in

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<v Speaker 1>the Supreme Court confirmation process, I imagine that she'll get

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<v Speaker 1>through with maybe exclusively Democratic votes, maybe one or two Republicans.

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<v Speaker 1>The only thing I hope that comes out of it

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<v Speaker 1>is that we don't see a nominee who finds that

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<v Speaker 1>because of the process they are changed, that they become

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<v Speaker 1>a different person than they might otherwise be. It sometimes

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<v Speaker 1>said that Clarence Thomas became very bitter after his confirmation

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<v Speaker 1>hearing and hardened his views on some issues. I don't

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<v Speaker 1>know if that's true or not, but it's been said,

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<v Speaker 1>and certainly there was concerned after Brett Kavanaugh railed against

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<v Speaker 1>Democrats for their attack on him and the confirmation hearing,

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<v Speaker 1>promising payback, which raised questions about whether as a justice,

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<v Speaker 1>he would be motivated by a desire for revenge in

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<v Speaker 1>these kinds of confirmation hearing. If so, it shows one

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<v Speaker 1>of the dangers of having this very highly politicized process.

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<v Speaker 1>Thanks for being on the show Adam. That's Professor Adam

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<v Speaker 1>Winkler of u c. L A Law School. This week,

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<v Speaker 1>the Supreme Court considered whether a group of five hundred

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<v Speaker 1>Taco Bell employees had to arbitrate overtime claims against a

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<v Speaker 1>Taco Bell franchise rather than press them in federal court.

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<v Speaker 1>The case centers on the waiver of rides by failing

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<v Speaker 1>to promptly invoke arbitration early in litigation. The Taco Bell

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<v Speaker 1>employees say they've been cheated out of overtime paid by Sundance,

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<v Speaker 1>the company that owns about one fifty Taco Bell franchises.

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<v Speaker 1>The case proceeded in federal court for nearly eight months

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<v Speaker 1>before the company invoked an arbitration provision in its standard

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<v Speaker 1>form employment contract. Confusion seemed to reign during the oral arguments,

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<v Speaker 1>although Justice Stephen Bryer seemed to best explain the controversy.

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<v Speaker 1>I mean, you had an arbitration agreement, so what you

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<v Speaker 1>decided to do with brial lawsuit? And nobody said anything

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<v Speaker 1>further for quite a while, and then finally the other

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<v Speaker 1>side said, let's quote arbitration and were they too late?

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<v Speaker 1>Now that kind of situation, I bet arises fairly frequently. Okay,

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<v Speaker 1>Now we're starting to create a matrix of rules through

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<v Speaker 1>your logic. It is so complicated that that that it's

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<v Speaker 1>at least hard for a lay person like me in

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<v Speaker 1>this area to understand. And what's worrying me is that

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<v Speaker 1>my instinctive answer, which you will tell me is wrong.

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<v Speaker 1>If it's wrong, is it depends? My guest is Mark Rifkin,

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<v Speaker 1>a partner Wolf Haul and Stein. First of all, tell

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<v Speaker 1>us why Taco Bell is being sued. Yeah, So this

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<v Speaker 1>is a labor case where the plaintiff, the lleges violation

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<v Speaker 1>of wage and our law. And it's a case that

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<v Speaker 1>was related to a second case by a different employee

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<v Speaker 1>in a different state, also against the same company, Sundance

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<v Speaker 1>for violating the wagean arrow laws in Michigan. So the

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<v Speaker 1>Iowa case that's in front of the Supreme Court now

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<v Speaker 1>was related to the Michigan case brought by a different employee,

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<v Speaker 1>both of whom alleged wage our law violations. And what's

0:14:02.679 --> 0:14:06.800
<v Speaker 1>the basic issue in the case. So the question in

0:14:06.840 --> 0:14:09.599
<v Speaker 1>the case, as I understand it, although I have to

0:14:09.640 --> 0:14:12.840
<v Speaker 1>confess after listening to the to the argument, I'm not

0:14:12.920 --> 0:14:16.000
<v Speaker 1>sure that anyone understands it. But the question in the

0:14:16.000 --> 0:14:21.200
<v Speaker 1>case is whether a court can require either party to

0:14:21.320 --> 0:14:27.320
<v Speaker 1>an arbitration agreement to demonstrate prejudice to the other party.

0:14:27.360 --> 0:14:31.480
<v Speaker 1>If the party seeking to compel arbitration in this case

0:14:31.480 --> 0:14:35.040
<v Speaker 1>it was Taco Bell, it was Sundance. If if the

0:14:35.080 --> 0:14:39.240
<v Speaker 1>party seeking to compel arbitration has waived its right to

0:14:39.280 --> 0:14:45.280
<v Speaker 1>do so by participating in litigation in court before asking

0:14:45.560 --> 0:14:50.240
<v Speaker 1>that the matter be referred to arbitration, and so in

0:14:50.280 --> 0:14:54.360
<v Speaker 1>this case just briefly because the proceedings get confusing, but

0:14:54.760 --> 0:14:59.400
<v Speaker 1>briefly describe what happened to make the plaintiff say that

0:14:59.640 --> 0:15:06.400
<v Speaker 1>tak Abel had engaged in litigation beforehand. Sure, so Morgan

0:15:06.480 --> 0:15:10.200
<v Speaker 1>files a complaint and says that the Sundance has engaged

0:15:10.240 --> 0:15:14.840
<v Speaker 1>in this wage an hour violation. Sundance answers the complaint

0:15:14.880 --> 0:15:20.840
<v Speaker 1>does not assert the arbitration agreement that is in Morgan's

0:15:20.840 --> 0:15:27.320
<v Speaker 1>employment contract, and the case proceeds. It gets coordinated with

0:15:27.880 --> 0:15:31.560
<v Speaker 1>the case in Michigan by Wood, also a wage an

0:15:31.560 --> 0:15:36.240
<v Speaker 1>hour case where Sundance was the defendant, and like they

0:15:36.280 --> 0:15:40.640
<v Speaker 1>did with Morgan, they didn't assert any arbitration agreement in

0:15:40.680 --> 0:15:43.840
<v Speaker 1>their answer. In the Wood case either, both cases were

0:15:44.200 --> 0:15:50.120
<v Speaker 1>sent off to the mediation where would settled. The case

0:15:50.200 --> 0:15:52.960
<v Speaker 1>that was pending in Michigan, the Morgan case, the case

0:15:53.000 --> 0:15:54.920
<v Speaker 1>that's now in front of the Supreme Court, went back

0:15:54.960 --> 0:16:00.520
<v Speaker 1>to Iowa where the defendant sun Dance, then, after an

0:16:00.600 --> 0:16:04.720
<v Speaker 1>unsuccessful attempt to mediate a settlement, then try to compel

0:16:05.320 --> 0:16:10.760
<v Speaker 1>arbitration under Morgan's employment agreement. And Morgan says, well, wait

0:16:10.760 --> 0:16:14.040
<v Speaker 1>a minute. You waive that right by not asserting it

0:16:14.120 --> 0:16:17.880
<v Speaker 1>sooner and by invoking the litigation mechanism. It's too late

0:16:17.880 --> 0:16:21.520
<v Speaker 1>for you to insist on arbitration now, and that has

0:16:21.600 --> 0:16:24.440
<v Speaker 1>led to the dispute that the Supreme Court now has

0:16:24.440 --> 0:16:28.120
<v Speaker 1>in front of it. The District Court agreed with Morgan

0:16:28.560 --> 0:16:32.120
<v Speaker 1>that Sundance waived the arbitration provision, but the Sixth Circuit

0:16:32.240 --> 0:16:36.760
<v Speaker 1>disagreed and said no, Morgan failed to demonstrate any prejudice

0:16:37.120 --> 0:16:41.080
<v Speaker 1>and therefore no waiver had taken place. And Morgan's answer is,

0:16:41.120 --> 0:16:43.920
<v Speaker 1>will wait a minute. Nobody else has to show prejudice

0:16:44.000 --> 0:16:46.680
<v Speaker 1>in the case of waiver. Why are we treating arbitration

0:16:47.000 --> 0:16:50.720
<v Speaker 1>agreements different than any other kind of contractual agreement where

0:16:51.000 --> 0:16:54.600
<v Speaker 1>prejudice isn't required to demonstrate waiver? And that's the issue

0:16:54.680 --> 0:16:58.240
<v Speaker 1>that presumably the Supreme Court was going to decide. So,

0:16:58.360 --> 0:17:01.760
<v Speaker 1>mark are the circuits split on whether or not prejudice

0:17:01.840 --> 0:17:06.560
<v Speaker 1>is required here? There is disagreement about whether prejudice can

0:17:06.640 --> 0:17:11.200
<v Speaker 1>be required or not. And so the principle that the

0:17:11.320 --> 0:17:15.000
<v Speaker 1>Court should have, in my view, should have considered is

0:17:15.000 --> 0:17:18.119
<v Speaker 1>whether requiring prejudice to show waiver in the context of

0:17:18.160 --> 0:17:24.360
<v Speaker 1>an arbitration agreement treats arbitration agreements differently than all other agreements.

0:17:24.400 --> 0:17:27.639
<v Speaker 1>That would be a violation of Section two of the

0:17:28.000 --> 0:17:33.760
<v Speaker 1>Federal Arbitration Act, which essentially requires that arbitration agreements beat

0:17:33.840 --> 0:17:38.000
<v Speaker 1>on equal footing with all other contracts. This places arbitration

0:17:38.080 --> 0:17:42.840
<v Speaker 1>agreements in a preferred status because it imposes an additional

0:17:42.920 --> 0:17:46.879
<v Speaker 1>requirement on a partner trying to show that the agreement

0:17:46.960 --> 0:17:50.760
<v Speaker 1>was waived. The Supreme Court arguments the justices that we're

0:17:50.800 --> 0:17:56.040
<v Speaker 1>talking about state law versus federal law about whether the

0:17:56.119 --> 0:17:58.919
<v Speaker 1>arbitration agreement is valid and forcible. I mean, did you

0:17:58.960 --> 0:18:03.200
<v Speaker 1>get any feel after the arguments of what they are

0:18:03.320 --> 0:18:08.160
<v Speaker 1>concerned about. I honestly had a feeling throughout the entire

0:18:08.280 --> 0:18:14.320
<v Speaker 1>argument of being Alice in Wonderland, because the entire premise

0:18:14.720 --> 0:18:18.240
<v Speaker 1>of the argument was that arbitration agreements have to be

0:18:18.359 --> 0:18:22.040
<v Speaker 1>on equal footing with all other agreements, except when they don't.

0:18:22.600 --> 0:18:27.119
<v Speaker 1>And then we went into this whole discussion about weather

0:18:27.760 --> 0:18:32.720
<v Speaker 1>Section three of the f a A, which says that

0:18:33.280 --> 0:18:37.240
<v Speaker 1>any party may compel arbitration if that party is not

0:18:37.840 --> 0:18:42.679
<v Speaker 1>in the fall of something. It doesn't say what, and

0:18:42.760 --> 0:18:45.560
<v Speaker 1>the court then tried to figure out what that meant.

0:18:45.920 --> 0:18:48.680
<v Speaker 1>And you know, I was thinking to myself, why why

0:18:48.720 --> 0:18:52.640
<v Speaker 1>are they isolating Section two in section three, as though

0:18:53.200 --> 0:18:57.119
<v Speaker 1>those provisions should be read separately and independently. And I

0:18:57.200 --> 0:19:00.600
<v Speaker 1>kept thinking, So, if I'm driving down the highway and

0:19:00.680 --> 0:19:03.920
<v Speaker 1>I get pulled over for speeding, you know, the law

0:19:04.000 --> 0:19:07.359
<v Speaker 1>requires that I observed the speed limits, and it also

0:19:07.400 --> 0:19:10.000
<v Speaker 1>requires that I use the turn signal when I change

0:19:10.040 --> 0:19:12.439
<v Speaker 1>from one lane to another line. I have to do both.

0:19:12.720 --> 0:19:15.200
<v Speaker 1>And so if I get pulled over for speeding, I

0:19:15.240 --> 0:19:18.840
<v Speaker 1>can't say to the judge, who here's my case, but

0:19:18.960 --> 0:19:21.719
<v Speaker 1>I use my turn signal, I use my turn signal.

0:19:22.000 --> 0:19:25.800
<v Speaker 1>I have to satisfy both requirements. And it seems to

0:19:25.840 --> 0:19:29.320
<v Speaker 1>me that the court and the parties tried to split

0:19:29.359 --> 0:19:34.320
<v Speaker 1>this up piecemeal, and we lost sight of the whole issue,

0:19:34.400 --> 0:19:37.679
<v Speaker 1>which I think is, you know, it's just a simple question.

0:19:38.119 --> 0:19:43.920
<v Speaker 1>It's sun danced knowingly and intentionally manifest an intention to

0:19:44.800 --> 0:19:49.960
<v Speaker 1>abandon its right to insist on arbitration. If it did that,

0:19:49.960 --> 0:19:53.200
<v Speaker 1>that ends the question. If it didn't do that, then

0:19:53.240 --> 0:19:56.280
<v Speaker 1>the party should be sent to arbitration. The argument got

0:19:56.320 --> 0:19:59.920
<v Speaker 1>so complicated and so convoluted. I don't know that any

0:20:00.000 --> 0:20:03.400
<v Speaker 1>one can understand it. Now, where does prejudice fit into

0:20:03.400 --> 0:20:07.000
<v Speaker 1>what you can say? The issue is so some states,

0:20:07.080 --> 0:20:10.080
<v Speaker 1>and New York is one of them, Some states say

0:20:10.119 --> 0:20:14.400
<v Speaker 1>that in order to demonstrate waiver of any contractual right,

0:20:14.800 --> 0:20:17.920
<v Speaker 1>there must be a clear manifestation of an intent by

0:20:17.960 --> 0:20:21.960
<v Speaker 1>the party who is waiving the right to relinquish a

0:20:22.040 --> 0:20:25.840
<v Speaker 1>known right. But in the arbitration context, New York says,

0:20:25.840 --> 0:20:29.440
<v Speaker 1>like many other states do, that the Federal Arbitration Act

0:20:29.760 --> 0:20:35.760
<v Speaker 1>also requires prejudice to the party opposing arbitration before an

0:20:35.840 --> 0:20:40.800
<v Speaker 1>arbitration clause may be waived. So there's this special layer

0:20:40.920 --> 0:20:44.240
<v Speaker 1>of proof that's put on a party to show that

0:20:44.359 --> 0:20:47.800
<v Speaker 1>an arbitration clause has been waived that doesn't exist in

0:20:47.880 --> 0:20:52.520
<v Speaker 1>any other contract where one party is claiming that the

0:20:52.560 --> 0:20:56.240
<v Speaker 1>other party has waived a contractual right, and that's that's

0:20:56.280 --> 0:20:59.480
<v Speaker 1>really the gist of the dispute. Which way do you

0:20:59.520 --> 0:21:03.800
<v Speaker 1>think it should come out? I think that if Section

0:21:03.880 --> 0:21:09.040
<v Speaker 1>two of the f a A means that arbitration agreements

0:21:09.080 --> 0:21:12.359
<v Speaker 1>have to be interpreted on equal footing with all other contracts,

0:21:12.400 --> 0:21:18.120
<v Speaker 1>that the prejudice requirement should apply if state law applies

0:21:18.200 --> 0:21:21.479
<v Speaker 1>that to all contract rights. So if if a state

0:21:21.640 --> 0:21:26.479
<v Speaker 1>law says that to demonstrate waiver of a contractual right,

0:21:26.760 --> 0:21:29.800
<v Speaker 1>a party has to show two things, first, a clear

0:21:29.800 --> 0:21:33.400
<v Speaker 1>intention on the part of the party that's waiving the right,

0:21:34.200 --> 0:21:40.520
<v Speaker 1>two intentionally and deliberately waive a known right, and also

0:21:41.440 --> 0:21:44.719
<v Speaker 1>must show that the party asserting waiver has been prejudiced,

0:21:45.440 --> 0:21:49.520
<v Speaker 1>then fine, then Section two is satisfied. But if the

0:21:49.560 --> 0:21:52.920
<v Speaker 1>state law says you have to show a clear intention

0:21:53.240 --> 0:21:57.440
<v Speaker 1>to relinquious and known right and you also must demonstrate

0:21:57.560 --> 0:22:01.800
<v Speaker 1>prejudice only in the context of an arbitration clause, then

0:22:01.840 --> 0:22:06.640
<v Speaker 1>I think the requirement of equal status under section two

0:22:06.680 --> 0:22:10.080
<v Speaker 1>of the f A has been violated. What's happening here

0:22:10.480 --> 0:22:14.760
<v Speaker 1>is that the Supreme Court is putting arbitration agreements in

0:22:15.119 --> 0:22:20.919
<v Speaker 1>a preferred class. They are giving special status to arbitration

0:22:20.960 --> 0:22:24.120
<v Speaker 1>agreements and if we look at this case and we

0:22:24.200 --> 0:22:27.439
<v Speaker 1>listen to that argument in any other way, we're not

0:22:27.520 --> 0:22:30.200
<v Speaker 1>seeing what's going on. It used to be the law

0:22:30.600 --> 0:22:35.320
<v Speaker 1>that the f a A Was intended to protect arbitration

0:22:35.359 --> 0:22:39.720
<v Speaker 1>agreements between sophisticated commercial parties, and to do that, the

0:22:39.800 --> 0:22:42.960
<v Speaker 1>law put those agreements on the same footing as all

0:22:42.960 --> 0:22:47.080
<v Speaker 1>other contracts. We've moved now so far beyond that that

0:22:47.320 --> 0:22:51.760
<v Speaker 1>in any context, in a commercial context, in a consumer context,

0:22:51.840 --> 0:22:55.880
<v Speaker 1>in any context. The Supreme Court now seems to think

0:22:56.440 --> 0:23:01.840
<v Speaker 1>that arbitration agreements have some special protected status above all

0:23:01.880 --> 0:23:05.000
<v Speaker 1>other contractual provisions. And that's the only way you can

0:23:05.080 --> 0:23:08.080
<v Speaker 1>understand what's happening in this case and what happened in

0:23:08.119 --> 0:23:10.760
<v Speaker 1>the argument. There's no other way to understand what was

0:23:10.760 --> 0:23:13.080
<v Speaker 1>going on. I mean, even the liberal judges on the

0:23:13.119 --> 0:23:16.920
<v Speaker 1>Court got lost in this debate about the Section three

0:23:16.920 --> 0:23:20.439
<v Speaker 1>applied to substantive law. Is it a procedural question, is

0:23:20.520 --> 0:23:23.720
<v Speaker 1>is a state law question? Is a federal question? None

0:23:23.720 --> 0:23:26.760
<v Speaker 1>of that matters unless in the back of your mind

0:23:26.800 --> 0:23:30.359
<v Speaker 1>you're saying to yourself arbitration agreements are special. Because if

0:23:30.359 --> 0:23:33.920
<v Speaker 1>you don't say that, you don't get past Section two.

0:23:34.440 --> 0:23:37.800
<v Speaker 1>And it's It's like me and my speeding ticket. Okay, sure,

0:23:37.840 --> 0:23:40.080
<v Speaker 1>I used a turn signal and I changed lanes, but

0:23:40.119 --> 0:23:43.040
<v Speaker 1>I was going a hundred four miles. It makes no

0:23:43.119 --> 0:23:46.719
<v Speaker 1>sense that we're breaking these things down into these isolated components,

0:23:47.080 --> 0:23:51.080
<v Speaker 1>except if you recognize that arbitration agreements are, you know,

0:23:51.200 --> 0:23:53.920
<v Speaker 1>above the law. Thanks for being on the show. Mark.

0:23:54.240 --> 0:23:57.879
<v Speaker 1>That's Mark riskin a partner Wolf Holdenstein, And that's it

0:23:57.920 --> 0:24:00.520
<v Speaker 1>for this edition of The Bloomberg Law Show. Remember you

0:24:00.560 --> 0:24:03.000
<v Speaker 1>can always get the latest legal news on our Bloomberg

0:24:03.119 --> 0:24:06.679
<v Speaker 1>Law Podcast. You can find them on Apple Podcasts, Spotify,

0:24:06.880 --> 0:24:11.920
<v Speaker 1>and at www dot Bloomberg dot com, slash podcast Slash Law,

0:24:12.320 --> 0:24:14.959
<v Speaker 1>and remember to tune into The Bloomberg Law Show every

0:24:15.000 --> 0:24:18.400
<v Speaker 1>week night at ten BM Wall Street Time. I'm June

0:24:18.440 --> 0:24:20.639
<v Speaker 1>Grosso and you're listening to Bloomberg