Franken's anti-rape amendment

October 19, 2009 9:50 AM

Jamie Leigh Jones alleges she was drugged and gang-raped by co-workers at Camp Harper in Iraq while employed by KBR. As explained by Senator Al Franken in this youtube clip, Ms. Jones had signed a contract requiring binding arbitration of employment related disputes. Sen. Franken introduced Amendment 2588, which would prohibit any use of Federal funds for Federal contractors that require such agreements. The amendment passed 68-30 (roll call).

Background on the Jones vs. KBR case.

posted by aerotive (185 comments total)

How the hell is a rape an 'employment related dispute'?
posted by PenDevil at 9:54 AM on October 19, 2009 [27 favorites]

How the hell is a rape an 'employment related dispute'?

Presumably KBR considers raping your co-workers to be a job perk.
posted by foodgeek at 10:00 AM on October 19, 2009 [11 favorites]

How the hell is a rape an 'employment related dispute'?
posted by PenDevil
This was apparently a frequent enough problem in Iraq that it was, staggeringly enough, actually a standard boilerplate in their contracts.
posted by Lanark at 10:01 AM on October 19, 2009 [1 favorite]

How the hell is a rape an 'employment related dispute'?

Amongst people who kill for a living?
posted by kid ichorous at 10:03 AM on October 19, 2009 [21 favorites]

I'm surprised they didn't make her disappear.
posted by kid ichorous at 10:04 AM on October 19, 2009 [8 favorites]

Notably the following 30 (men) voted against this amendment:

Lamar Alexander (R-TN)
John Barrasso (R-WY)
Kit Bond (R-MO)
Sam Brownback (R-KS)
Jim Bunning (R-KY)
Richard Burr (R-NC)
Saxby Chambliss (R-GA)
Tom Coburn (R-OK)
Thad Cochran (R-MS)
Bob Corker (R-TN)
John Cornyn (R-TX)
Mike Crapo (R-ID)
Jim DeMint (R-SC)
John Ensign (R-NV)
Mike Enzi (R-WY)
Lindsey Graham (R-SC)
Judd Gregg (R-NH)
James Inhofe (R-OK)
Johnny Isakson (R-GA)
Mike Johanns (R-NE)
Jon Kyl (R-AZ)
John McCain (R-AZ)
Mitch McConnell (R-KY)
James Risch (R-ID)
Pat Roberts (R-KS)
Jeff Sessions (R-AL)
Richard Shelby (R-AL)
John Thune (R-SD)
David Vitter (R-LA)
Roger Wicker (R-MS)

Of those, the following are up for reelection in 2010:

Tom Coburn (R-OK)
Mike Crapo (R-ID)
Jim DeMint (R-SC)
Johnny Isakson (R-GA)
Richard Shelby (R-AL)
John McCain (R-AZ)
John Thune (R-SD)
David Vitter (R-LA)
Richard Burr (R-NC)
posted by Lanark at 10:04 AM on October 19, 2009 [128 favorites]

Franken's managed to create quite a presence for himself in the short time he's been in office, and his grand-standing actually has a purpose and a point. He's too much of a bomb-thrower to make it very high up the leadership ladder, but it's nice to know there's someone in the Senate to fight the good fight.
posted by Slap*Happy at 10:06 AM on October 19, 2009 [49 favorites]

It's not that rape is an employment related dispute, it's that any civil suit against KBR arising from the rape would, contractually, be dealt with through binding arbitration rather than a civil suit. Since KBR was in Iraq at the time, exempt from Iraqi criminal jurisdiction, and not apparently subject to the U.S. military command's justice system, a civil suit was effectively the only way the rape would up in court, thus prompting the extra helping of outrage in this case.

Franken's amendment essentially says that any employment dispute arising from a civil rights or sexual harassment claim cannot be bound to an arbitration clause in an employment contract.
posted by fatbird at 10:07 AM on October 19, 2009 [7 favorites]

Tom Coburn (Rape-OK)

FTFY.
posted by MuffinMan at 10:08 AM on October 19, 2009 [35 favorites]

Since KBR was in Iraq at the time, exempt from Iraqi criminal jurisdiction, and not apparently subject to the U.S. military command's justice system, a civil suit was effectively the only way the rape would up in court

Actually, the rape is subject to federal prosecution in the U.S. but the DOJ either doesn't believe it would be able to make a successful case or it doesn't have an interest in pursuing it.
posted by Justinian at 10:08 AM on October 19, 2009 [1 favorite]

Jon Stewart discussed this on his show last week--complete with outing the hypocrisy involved.
posted by leftcoastbob at 10:12 AM on October 19, 2009 [5 favorites]

He's too much of a bomb-thrower to make it very high up the leadership ladder

Well, he does represent Minnesota, home of Paul Wellstone, Jesse Ventura, Keith Ellison, and Michelle Bachmann.
posted by GameDesignerBen at 10:12 AM on October 19, 2009 [1 favorite]

Actually, the rape is subject to federal prosecution in the U.S. but the DOJ either doesn't believe it would be able to make a successful case or it doesn't have an interest in pursuing it.

I believe the DOJ at the time explicitly said that they don't have jurisdiction over contractors in Iraq because they weren't members of the military. That's been contradicted several times since by various Congresspeople, but the fact of the matter is that the DOJ themselves de facto exempted contractors from any criminal liability in Iraq at all.
posted by fatbird at 10:14 AM on October 19, 2009 [3 favorites]

I particularly liked how efforts to ban ACORN on general legal grounds (no federal funding for organizations which are involved in felony crimes, IIRC) also would've effectively slashed the funding of such popular right-wing government teat-suckers as Halliburton and Blackwater.
posted by mullingitover at 10:15 AM on October 19, 2009 [4 favorites]

Tom Coburn (R-OK)

Yes, but what you have to understand is that the victim here was a mere woman, not an all-important bundle of 16 undifferentiated cells.
posted by DU at 10:15 AM on October 19, 2009 [65 favorites]

There's some fine satire over at Republicans For Rape.
posted by spiderskull at 10:16 AM on October 19, 2009 [6 favorites]

I found the "Background" link a little difficult to follow. The appeals court ruled that Jones can have her civil case tried in court, rather than through arbitration. They found that her specific situation and accusations did not fall under the scope of her contract's arbitration clause. It was a 2-1 split decision.


Also, it's Jamie Leigh Jones.
posted by zarq at 10:17 AM on October 19, 2009

Before looking at the roll-call, my gut thinking was that all 30 nays would have a big red "R" next to their names. Surprise surprise...
posted by karmiolz at 10:17 AM on October 19, 2009 [2 favorites]

Lanark: "Notably the following 30 (men) voted against this amendment:"

Man, I'd love to hear their explanations.

fatbird: "Since KBR was in Iraq at the time, exempt from Iraqi criminal jurisdiction, and not apparently subject to the U.S. military command's justice system, a civil suit was effectively the only way the rape would up in court, thus prompting the extra helping of outrage in this case."

If the rape is not prosecutable in Iraq, would it follow that the murder of the rapists would not be prosecutable as well?
posted by boo_radley at 10:18 AM on October 19, 2009 [10 favorites]

Before looking at the roll-call, my gut thinking was that all 30 nays would have a big red "R" next to their names. Surprise surprise...

Yeah, lotta "R"s there. How predictable.
posted by Liquidwolf at 10:20 AM on October 19, 2009

I've asked Bob Corker to justify his vote (I live in TN). I'll share his response.
posted by joannemerriam at 10:20 AM on October 19, 2009 [8 favorites]

joannemerriam: "I've asked Bob Corker to justify his vote (I live in TN). I'll share his response."

Thank you. Maybe if other mefites could try the same thing, that would be pretty nice.
posted by boo_radley at 10:22 AM on October 19, 2009 [6 favorites]

can someone with better legal chops than me explain the nitty gritty details of franken's amendment?

because right now it looks to me like 30 republicans are openly aligning themselves with military contractors in favor of rape, and my mind is fucking blown.

is it that there's some other, non rape related, consequence to this that these guys are worried about, or is it literally that they will simply vote in opposition to anything that threatens the financing of their pals in the military contractor business, even if it's as simple as saying "we won't pay you to deny legal recourse to rape vicitims?"

seriously, please give me the deeper details, here, because this is fucking inexcusable if my understanding of this is correct. further, if i understand correctly, it's a shockingly clear illustration of the difference between the two parties.
posted by shmegegge at 10:23 AM on October 19, 2009

Here's a daily show clip: it's about, hah, contract law.
posted by boo_radley at 10:25 AM on October 19, 2009 [3 favorites]

I wrote to both of my Senators after I read about this last week. I'll also share any responses I receive, but I'm not holding my breath that I'll get anything other than a form letter in return.
posted by deadmessenger at 10:26 AM on October 19, 2009

The justification I've heard is that the bill was a "political attack" on the fine young men and women who work at Halliburton and KBR.

While it is true that Halliburton and KBR are specifically named in the bill, it also specifies that it applies to any contractor for the US government. So yeah, basically the Republicans seem to grandstanding, very very poorly.
posted by muddgirl at 10:27 AM on October 19, 2009

No, shmeggegge, it's exactly as bad as it looks.
posted by Pope Guilty at 10:28 AM on October 19, 2009 [4 favorites]

For those not closely reading the roll call, every single one of the female Republican Senators voted with the Democrats on this (as did a few Republican men; kudos to you, Senators Grassley, LeMieux, Bennett, Lugar and Voinovich, for being goddamn human beings.)
posted by Tomorrowful at 10:28 AM on October 19, 2009 [35 favorites]

If the rape is not prosecutable in Iraq, would it follow that the murder of the rapists would not be prosecutable as well?

That's a very interesting question. I never heard about any contractors killing other contractors, but it would seem to be the case.

because right now it looks to me like 30 republicans are openly aligning themselves with military contractors in favor of rape, and my mind is fucking blown.

It does look that way, but the reasonable objection to Franken's amendment is that it removes from arbitration lots of things that were (until now unproblematically) handled with binding arbitration, such as hiring and assignment disputes where race or gender may be involved. One of the virtues of binding arbitration is that the process is a lot faster and cheaper than a civil suit, and generally can be fair if set up correctly. The DoD was also against the Franken amendment.

Still, that's an awesome hill to die on, Republicans.
posted by fatbird at 10:28 AM on October 19, 2009 [6 favorites]

Man, I'd love to hear their explanations.

Watch the Jon Stewart clip. Their reasoning was that it was "political". Of course, that didn't stop them with Acorn. Gang raping an employee is one thing, but helping a hooker with her taxes? That's just to far for them. Although the law they passed to stop ACORN from getting federal funds was written so broadly that would actually prevent any organization from receiving federal funds if it had ever been indicted for anything. It would actually immediately defund tons of military contractors, including Halliburton if this case were ever prosecuted (plus, I imagine Halliburton probably has racked up some other indictments over the years).
posted by delmoi at 10:29 AM on October 19, 2009 [2 favorites]

because right now it looks to me like 30 republicans are openly aligning themselves with military contractors in favor of rape

That is basically it. The amendment is very finely tuned to apply to absolutely nothing except what it says. But the contractors don't want it, and have leaned on their pet critters to keep it away.

and my mind is fucking blown.

Not so much.
posted by localroger at 10:30 AM on October 19, 2009

One of the virtues of binding arbitration is that the process is a lot faster and cheaper than a civil suit, and generally can be fair if set up correctly.

It's certainly cheaper for the defendants.
posted by delmoi at 10:30 AM on October 19, 2009 [18 favorites]

If the Democrats are smart, they'll absolutely hammer the airwaves with ads publicizing these guys' votes on Amendment 2588 the next time any of them is up for reelection.

So what you're saying is that it will never be brought up by their challengers campaigns, who will decry grassroots efforts to raise the issue.
posted by Pope Guilty at 10:32 AM on October 19, 2009 [13 favorites]

It's certainly cheaper for the defendants.

And it's also very difficult to judge beforehand whether or not an arbitration process will actually be fair. I think it's a safe presumption that the process outlined in an employment contract will not be slanted in the plaintiff's favour.

But to give you an idea of where it's not such a bad thing: When I built my house, the contract with the architect had an arbitration clause. The only problem I found was that his professional association picked the arbitrator. My lawyer suggested changing that to the architect picks one, I pick one, and those two pick a third; the architect had no problem with that.
posted by fatbird at 10:34 AM on October 19, 2009 [7 favorites]

They drugged her and they beat her up so badly and abused her in such a way that both of her implants were busted and she was bleeding out. I think she's 19 years old. I don't know where I read about the extent of her injuries, but it was sickening. That company needs to be held liable.
posted by anniecat at 10:35 AM on October 19, 2009 [2 favorites]

The amendment is very finely tuned to apply to absolutely nothing except what it says.

Yes, but what it says is any claim with a basis in civil rights or sexual harassment/assault/etc. In other words, the basis of most claims that normally lead to lawsuits. I happen to think it's right that these things not go through employer-dictated arbitration, but the amendment will have quite a big effect on dispute resolution with employees.
posted by fatbird at 10:36 AM on October 19, 2009 [1 favorite]

One of the virtues of binding arbitration is that the process is a lot faster and cheaper than a civil suit, and generally can be fair if set up correctly utterly and cravenly beholden to the corporations who hire the arbitrators.
posted by Horace Rumpole at 10:38 AM on October 19, 2009 [15 favorites]

the reasonable objection to Franken's amendment is that it removes from arbitration lots of things that were (until now unproblematically) handled with binding arbitration, such as hiring and assignment disputes where race or gender may be involved.

I don't think that this is a reasonable objection for the type of disputes you indicate.
posted by DU at 10:38 AM on October 19, 2009 [1 favorite]

"A Monitor analysis of the last year of available data from NAF found that arbitrators awarded in favor of creditors and debt buyers in more than 96 percent of the cases."

Private arbitration is inherently and unavoidable as corrupt as any other privatised public service.
posted by Pope Guilty at 10:41 AM on October 19, 2009 [22 favorites]

My mind is blown, too, but only that more Republicans didn't side with their corporate oligarchs. That's probably a really good indicator of how actually fucked up this situation is.
posted by Aquaman at 10:41 AM on October 19, 2009 [1 favorite]

I don't think that this is a reasonable objection for the type of disputes you indicate.

Well, neither do I, but it must be admitted that, until a gangrape was the issue, binding arbitration was handling lots of these claims, and was cheaper and faster than a civil suit, and was generally accepted as a dispute resolution mechanism. Franken's amendment puts an end to most of that.

At any rate, it's a much more reasonable objection to the amendment than "No, I think it's okay for contractors to gangrape their employees without any liability for their employers."
posted by fatbird at 10:42 AM on October 19, 2009 [1 favorite]

I thought for sure this post would contain a link to the satirical Republicans for Rape blog (e.g. America's Rape Belt).
posted by Rhomboid at 10:42 AM on October 19, 2009

That Republicans for Rape site is pretty entertaining.
posted by chunking express at 10:44 AM on October 19, 2009

(oops, already mentioned. That's what I get for skimming.)
posted by Rhomboid at 10:45 AM on October 19, 2009 [1 favorite]

You overlooked it, Rhomboid, but it's already made an appearance.
posted by Astro Zombie at 10:46 AM on October 19, 2009

And that's what I get for not previewing.
posted by Astro Zombie at 10:46 AM on October 19, 2009 [1 favorite]

It's not so much that they're pro-rape, it's that they're anti-democrat.

The American political system has declined to the point that no matter what the opposition says, they are wrong. Apparently nobody wants to work together for the good of the country, they would rather fight amongst themselves than solve problems.

Lady Liberty weeps for you.
posted by blue_beetle at 10:49 AM on October 19, 2009 [10 favorites]

If the Demorats are for it, I'm agin it. What did I just vote for, anyway?

Rape? Are you fucking kidding me? Are you honestly telling me that I just voted against women being able to sue a company when they are gang raped by it's employees? Seriously? Fucking seriously? Do not fuck around with me here.

GOD DAMN IT. I have to read these bills before I vote.
posted by Astro Zombie at 10:52 AM on October 19, 2009 [26 favorites]

It's not so much that they're pro-rape, it's that they're anti-democrat.

I don't know that any male Republicans will come out as being pro-rape, but I'm sure a few of those tough guys aren't really motivated to be anti-rape. John McCain has a long history of voting against women's rights, in particular. Which made his endorsement of Sarah Palin even more bitterly cynical.
posted by Blazecock Pileon at 10:53 AM on October 19, 2009 [3 favorites]

Rights of Corporations | Rights of Humans

Pick one.
posted by Sys Rq at 10:57 AM on October 19, 2009 [19 favorites]

Sys Rq: "Rights of Corporations | Rights of Humans

Pick one."

But, but... Corporations are people, too!
posted by symbioid at 11:01 AM on October 19, 2009 [6 favorites]

can someone with better legal chops than me explain the nitty gritty details of franken's amendment?

It takes rape and a whole lot of non-rape and makes it non-arbitrable (not legally non-arbitrable, but de facto I'm betting - I could be proven wrong) for contractors accepting Federal funds under the 2010 DOD appropriations bill. In my opinion, it is overbroad. Even the employment contracts of the most progressive companies have arbitration clauses for, e.g., Title VII claims. I think it's a bad bill, and I would vote against it, and here is why:

(a) nobody's saying that she can't file suit against these people - the contract merely says that judges and former judges in their individual capacity as an arbitration panel will decide the case, instead of going through the pomp and circumstance of Federal court. if arbitration works just fine, then the bill is useless

(b) if arbitration is so bad - and there are some arguments that it is less fair, but I haven't seen any that convince me - then why limit it to these kinds of cases and why limit it to federal contractors? if arbitration doesn't work just fine, then the bill is overnarrow

(c) if arbitration is bad, but only in the context of things that should be handled by criminal courts, then why does it apply to all title vii claims? if arbitration is problematic for rape and other personal crimes and torts, but fine for other things, then the bill is overbroad

I think the bill both fails to do good things, and does bad things. The bill fails to do good things in that it wants to take Title VII out of arbitration territory but ONLY for federal military contractors, and I don't understand why Title VII shouldnt be arbitrated, and I don't understand why non-arbitrability of Title VII should apply only to federal military contractors, and it doesn't even begin to attempt an explanation. To be honest, I think the bill should have left Title VII qua Title VII alone and focused only on sexual assault and related offenses. I think it does bad in that it invites a host of gender-discrimination cases into an already overstretched judiciary (tangent: Obama, could you please get on the ball in filling judicial vacancies? TYVMIA).

I would probably vote for it if they made it only about what this post says its about. If they took out the Title VII stuff but left in the torts, I would vote for it. But even then, I have to wonder.

What is it about being a federal military contractor - instead of a federal state department contractor or any of the other types of federal contractor, or any other employer for that matter - that makes arbitration of employment contracts unworkable? Is Franken privy to some previously undiscovered influence the DoD wields over the NAA?

No. I think Franken is taking an emotionally charged moment and wringing it for political points. Maybe to steal the spotlight from his neighbor Russ Feingold, whose Arbitration Fairness Act (S. 1782, H.R. 3010) is, if nothing else, at least more consistent.
posted by jock@law at 11:01 AM on October 19, 2009 [7 favorites]

"nobody's saying that she can't file suit against these people - the contract merely says that judges and former judges in their individual capacity as an arbitration panel will decide the case, instead of going through the pomp and circumstance of Federal court."

When that can be seriously written w/r/t rape, I'm pretty sure he's still trolling, fatbird.
posted by Pope Guilty at 11:10 AM on October 19, 2009

Also, anybody who claims to be a law student and yet can write "if arbitration works just fine, then" without laughing so hard they fall over, break their keyboard, and destroy their tower is either not paying attention or trolling hard.
posted by Pope Guilty at 11:13 AM on October 19, 2009 [26 favorites]

Maybe to steal the spotlight from his neighbor Russ Feingold, whose Arbitration Fairness Act (S. 1782, H.R. 3010) is, if nothing else, at least more consistent.

That's a hell of a strange accusation. Do you have any real evidence that the point of this bill was so that Franken could puff himself up at the expense of a Democrat from a neighboring state? Especially seeing as Feingold voted for Franken's bill.

if arbitration is bad, but only in the context of things that should be handled by criminal courts, then why does it apply to all title vii claims? if arbitration is problematic for rape and other personal crimes and torts, but fine for other things, then the bill is overbroad

Interesting series of ifs there. I don't recall that being the argument.
posted by Astro Zombie at 11:13 AM on October 19, 2009 [2 favorites]

Richard Burr (R-NC)

In his '04 campaign the only message you saw in his commercials was that his opponent (Erskine Bowles) had previously worked for BILL CLINTON.

HE WORKED FOR CLIIIINTTTON !!    *cue evil sounding music/effects*

And he was elected on this.

Since then I've seen him more times on TMZ than I have back in NC.
posted by Webbster at 11:14 AM on October 19, 2009 [2 favorites]

the contract merely says that judges and former judges in their individual capacity as an arbitration panel will decide the case, instead of going through the pomp and circumstance of Federal court.

I'm sure you know more about law than I do, but if I'd been raped and beaten by representatives my employer 3000 miles from home and locked in a shipping container for a day without food or water or medical care, I don't know that I'd be willing to blow off the concept of taking my aggressors to federal court as "pomp and circumstance."
posted by hifiparasol at 11:16 AM on October 19, 2009 [44 favorites]

This is why I agree with Matt Taibbi's take on our goverment, that it is so unbelievably broken that an anti-rape bill can't even get passed. I blame both sides, there are just not enough adults in positions of power at this point. It's like two rival high schools were forced to merge and neither is willing to let the other accomplish anything, except the consequence is a failed empire. It's like in preschool when one kid steals the other kids toy on the carpet, but instead of being sent to timeout we send troops to war, create superficial bills to fix healthcare, allow banks to rape it's countries middle class without any repercussions and let women literally get raped oversees.

Where have all the adults gone? Al Franken is right in principle but he is still shoving it in the face of his opponents. It feels really good, but it's not anywhere near the beat way to go about effecting change and bringing about a culture in goverment where it's citizens see the types of actions we're all fundamentally looking for. Who raised these people? And why did they skip over the part of parenthood where you instill in your child the importanxe of character No. Matter. What.
posted by pwally at 11:16 AM on October 19, 2009 [2 favorites]

One of the issues with the prosecution of the case by the Justice Department is that the single most important piece of evidence, the rape kit, does not have a continuous, followable chain of custody, making it unreliable as evidence. It was taken by a KBR doctor who claims to not remember it, given to a KBR security officer, and then no one saw it for an extended period of time. When Ms. Jones was trying to get some help, the State Department was unable to obtain it from KBR.

As part of the arbitration, she agreed to see a KBR-assigned psychiatrist concerning her mental state, and the first question she was asked was if she intended to sue Halliburton/KBR. That strikes me as a remarkably leading question for an arbitration situation and one specifically to force her to answer so that either way that would cause trouble with her arbitration.

And jock@law: as I understand it, the bill's point is that it does not allow government contracts to be given to companies if their arbitration agreements include sexual assault. I am not a lawyer, so if someone who IS a lawyer can point out where I'm wrong, I would genuinely appreciate that, in the name of education. (No, really. I'd love to understand the reading of the law so I know where I'm making my mistakes.)
posted by mephron at 11:16 AM on October 19, 2009 [5 favorites]

...sorry, representatives of my employer.
posted by hifiparasol at 11:17 AM on October 19, 2009

This is why I agree with Matt Taibbi's take on our goverment, that it is so unbelievably broken that an anti-rape bill can't even get passed.

It did get passed. Minus 30 votes.
posted by Astro Zombie at 11:17 AM on October 19, 2009 [3 favorites]

(b) if arbitration is so bad - and there are some arguments that it is less fair, but I haven't seen any that convince me - then why limit it to these kinds of cases and why limit it to federal contractors? if arbitration doesn't work just fine, then the bill is overnarrow

On this, I agree. I hardly ever hear of anyone extolling the virtues of virtues of arbitration. I expect the reason that this bill is overnarrow is that it made it easier to pass. Outlawing arbitration would be too problematic, but a restriction on how federal funds are spent is a lot easier to pass.
posted by GuyZero at 11:18 AM on October 19, 2009 [7 favorites]

When that can be seriously written w/r/t rape, I'm pretty sure he's still trolling, fatbird.

No, his post was a well-reasoned examination of why someone might object to Franken's amendment. Remember that he's not talking about prosecution for rape, he's talking about civil suits against employers. If you think that arbitration generally is a fair process, then it shouldn't be a problematic way to seek damages in general.

No one is saying that Jamie Leigh Jones' only option for redressing her rape should be arbitration. But Franken's amendment will have a wide-ranging effect on federal contractors, and rape is far, far from the most common reason for civil suits against employers. Franken has effectively removed arbitration as a dispute resolution mechanism from federal contractors.

I agree with the outcome of the amendment, because I have strong doubts about the fairness of arbitration, especially when it's agreed to in the context of hiring and as provided by the employer. But this was taking a very extreme, rare case, and making a general law about it that affects far more than Jamie Leigh Jones.
posted by fatbird at 11:18 AM on October 19, 2009 [5 favorites]

I don't know that I'd be willing to blow off the concept of taking my aggressors to federal court as "pomp and circumstance."

Franken's amendment doesn't address taking her aggressors to court. By a fucked up series of policies and circumstances, her rapists are beyond the law.

Franken's amendment addresses her ability to sue KBR for its liability in her rape. Her aggressors will, horribly, get off scot free.
posted by fatbird at 11:21 AM on October 19, 2009 [1 favorite]

At any rate, it's a much more reasonable objection to the amendment than "No, I think it's okay for contractors to gangrape their employees without any liability for their employers."

Yeah, there is this whole "binding arbitration is AWESOME" concept floating around a lot of Republicans and pretty much all movement conservative types, so they're might be less pro-rape and more anti-people using the civil legal system thing going on in the votes, but I have a feeling that at least some of the "nay" voters weren't getting a lot of sleepless nights about their conundrum.
posted by Snyder at 11:24 AM on October 19, 2009

It did get passed. Minus 30 votes.

So then our gov't is being held together by duct tape, the point is still valid.
posted by pwally at 11:36 AM on October 19, 2009

As the bill does also cover protection for racial discrimination, and it had been noted before that all of the (few) female republican senators did back the amendment, I thought I'd see if there were a similar divide with non-white republican senators. Except, of course, for the fact that there aren't any. I can't believe I had to look that up.
posted by Karmakaze at 11:38 AM on October 19, 2009 [5 favorites]

So then our gov't is being held together by duct tape, the point is still valid.

How do you figure? 68 voted for it. This wasn't a bill that squeaked by. It had so large a majority in favor of it that its opposers distinguished themselves by their opposition.
posted by Astro Zombie at 11:38 AM on October 19, 2009 [3 favorites]

they're might be less pro-rape and more anti-people using the civil legal system

Compare this to their screams for "tort reform". The Republican position is fundamentally against the right of citizens to use the legal system to protect their own rights and to seek redress against those who wrong them.
posted by Pope Guilty at 11:40 AM on October 19, 2009 [34 favorites]

The Republican position is fundamentally against the right of citizens to use the legal system to protect their own rights and to seek redress against those who wrong them.

That's also a useful way of understanding their opposition to "activist judges."
posted by Astro Zombie at 11:45 AM on October 19, 2009 [9 favorites]

What is it about being a federal military contractor - instead of a federal state department contractor or any of the other types of federal contractor, or any other employer for that matter - that makes arbitration of employment contracts unworkable?

They're working in a war-zone where there is no other practical way to pursue justice. There are no police who have any jurisdiction, and the nearest federal prosecutor is on the other side of the globe. Contractors in such a position have a notoriously bad track record of using arbitration to weasel out of any responsibility at all for their employee's well-being.

Domestic contractors have law enforcement breathing down their necks if they let their pet sadists have their way with the new hires. Contractors in Iraq do not.
posted by Slap*Happy at 11:47 AM on October 19, 2009 [10 favorites]

I thought I'd see if there were a similar divide with non-white republican senators. Except, of course, for the fact that there aren't any. I can't believe I had to look that up.

There are only 3 African American or Hispanic senators, one of whom is Roland Burris, who was appointed by Blagojevich, and won't be more then a two-year senator.

Actually, you're wrong. There is one Hispanic Republican, Mel Martinez, and he did vote for the Franken Amendment. Martinez is actually pretty unpopular in Florida and won't be running for re-election. The other Hispanic is the Democrat Robert Menendez, from New Jersey.

Also, both senators from Hawaii are Japanese Americans, for a total of five (out of 100) minority senators.
posted by delmoi at 11:52 AM on October 19, 2009 [5 favorites]

"Compare this to their screams for "tort reform". The Republican position is fundamentally against the right of citizens to use the legal system to protect their own rights and to seek redress against those who wrong them."

Just so. This is one more example of how the attempts at fairness and impartiality built into the legal system from its inception make it unsuitable for the modern world of concentrated power and brutal narcissism. The legal system is designed to be a level playing field and, increasingly, powerful elements of our society find themselves unwilling to be bound by it, and so are working to hobble it while creating alternate systems that are more amenable to their control.

The only meaningful and appropriate response, as is always the case when due process has been rendered moot, is violence.
posted by Naberius at 11:59 AM on October 19, 2009 [6 favorites]

The law does not prohibit voluntary arbitration if it is in the best interests of everyone involved to settle a dispute out of court. It does prohibit contractual mandatory arbitration as a requirement for employment. If arbitration "works just fine," the plaintiff and defendant can choose to do it.
posted by KirkJobSluder at 12:00 PM on October 19, 2009 [14 favorites]

Not to defend arbitration, but the idea for it is that if you went to small claims court or filed a civil lawsuit when you believed you were wrong, its going to cost the corporation a lot more money and everyone's bills will go up.

Now I don't buy that completely, but that's their story.
posted by SirOmega at 12:02 PM on October 19, 2009

Apparently nobody wants to work together for the good of the country, they would rather fight amongst themselves than solve problems.

I find this amusing, coming from a Canadian. I mean, you guys have another federal election coming up next month.








You thought for a moment that I wasn't kidding, didn't you?
posted by oaf at 12:03 PM on October 19, 2009 [2 favorites]

There are only four minority senators; George LeMieux replaced Mel Martinez and was sworn in September 10, 2009 when Martinez retired.
posted by VeritableSaintOfBrevity at 12:04 PM on October 19, 2009

if arbitration works just fine, then the bill is useless

If arbitration is fine, then why does it have to be made mandatory? Presumably if arbitration worked so well, employees would be demanding it from their employers and there would be no need to force them into it. Surely you are not saying that employers think arbitration is favorable to employees and they put it into their contracts as a benefit.

Obama, could you please get on the ball in filling judicial vacancies? TYVMIA.

You must be aware that in nine months only three of Obama's 23 judicial appointments have been approved because of anonymous holds and filibuster threats by Republicans in the Senate.
posted by JackFlash at 12:06 PM on October 19, 2009 [7 favorites]

There are only four minority senators; George LeMieux replaced Mel Martinez and was sworn in September 10, 2009 when Martinez retired.

Oops!

The law does not prohibit voluntary arbitration if it is in the best interests of everyone involved to settle a dispute out of court. It does prohibit contractual mandatory arbitration as a requirement for employment.

I'm not sure if that's true. I remember reading an article about a waitress who felt she had been harassed for years but didn't quit. When her employer came to her with an Arbitration contract, she chose to quit rather then sign it. Then she sued. But the judge ruled that even though she didn't sign it, the fact that she continued to work for a couple weeks meant she had effectively agreed to it!

Also, someone up there said that arbitration could be fair if "set up correctly", of course the defendants set it up, so why would they set it up in a fair way?
posted by delmoi at 12:16 PM on October 19, 2009 [2 favorites]

Also, both senators from Hawaii are Japanese Americans, for a total of five (out of 100) minority senators.

Actually, Sen. Daniel Akaka is of Native Hawaiian and Chinese descent. Daniel Inouye is, however, Japanese-American.
posted by Tomorrowful at 12:17 PM on October 19, 2009 [1 favorite]

Franken's amendment doesn't address taking her aggressors to court. By a fucked up series of policies and circumstances, her rapists are beyond the law.

Yeah, I'm not clear as to why this should be the case. Was there no criminal law enforcement in Iraq? Are these people beyond the reach of both US and Iraqi criminal law? How the hell does that shit happen?

If they can lock Lynddie England away, I'm not understanding how they can't find away to do the same thing with these rapists?
posted by PeterMcDermott at 12:19 PM on October 19, 2009 [1 favorite]

I find this amusing, coming from a Canadian. I mean, you guys have another federal election coming up next month.

Yeah, but I think the world holds the United States of America to a higher standard than a country that was basically formed to support a corporation (aka Canada).
posted by blue_beetle at 12:22 PM on October 19, 2009

Yeah, I'm not clear as to why this should be the case. Was there no criminal law enforcement in Iraq? Are these people beyond the reach of both US and Iraqi criminal law? How the hell does that shit happen?

The Coalition Provisional Authority explicitly refused to allow the nascent Iraqi government criminal jurisdiction over Americans working for them (i.e., contractors) and the military. The military refused criminal jurisdiction over the contractors because they weren't military. The DOJ said they can't prosecute crimes in Iraq. Bingo, no law can touch a contractor.

It's one of those things that just short-circuits your brain. I'm surprised more advantage wasn't taken of it.
posted by fatbird at 12:24 PM on October 19, 2009 [7 favorites]

If they can lock Lynddie England away, I'm not understanding how they can't find away to do the same thing with these rapists?

Lynndie England was part of the Armed Forces, and therefore subject to the rules of the Uniform Code of Military Justice. Civilian contractors do appear to be, due to the declaration by the DOJ that Iraq is out of its jurisdiction, totally outside all criminal law enforcement. Yes, this is kind of a little bit fucked up.
posted by Tomorrowful at 12:24 PM on October 19, 2009 [2 favorites]

Lynddie England was subject to the USMCoJ - the US Military has their own laws, their own police, and their own prosecution and defense system for personnel stationed in war zones.

Mercenaries do not.

This is one reason, among oh, so many, that allowing "contractors" to take over functions usually provided by the military in a war zone is a fantastically bad idea.
posted by Slap*Happy at 12:26 PM on October 19, 2009 [3 favorites]

if arbitration doesn't work just fine, then the bill is overnarrow
It is overnarrow, and Feingold's bill is certainly a better solution (no arbitration for most consumer or employment contracts), but I don't think that's enough reason to vote against Franken's bill.

One of the virtues of binding arbitration is that the process is a lot faster and cheaper than a civil suit, and generally can be fair if set up correctly.

As others have said, cheaper for a corporate defendant, but not for a plaintiff. Arbitrators are paid for by the parties, and generally require payment for a minimum number of days before the dispute will be heard. In a consumer transaction, the consumer's half of that upfront payment can easily be more than $2000. If I have a dispute with my car dealer over a $1700 repair, I have to pay out of pocket $2000 on the chance that I'll get my $1700 back. Doesn't seem worth pursuing for me, but definitely cheaper and faster for the defendant.

Worse still, there's no discovery in arbitration, and in many consumer and employment cases, the defendant will have all (or most of) the evidence. With no way to find that evidence, the plaintiff has no case. For example, just look at Jamie Leigh Jones. Who has all the evidence (rape kit, names of employees involved, investigation results)? The employer. Absent litigation in federal court, she has no access to that evidence. How can we have a fair proceeding without access to the evidence?

Access to the court system to resolve disputes is a constitutional right, and it's a good thing. We should have a public way to resolve disputes.

Hell, even here in Alabama, hardly the most progressive state in the US, arbitration agreements are unenforceable because they deny the constitutional right to access to the courts. It's only the FAA that makes arbitration agreements enforceable here.

Although the Fifth Circuit held that these facts were beyond the scope of this particular arbitration clause, that opinion isn't law in the other 10 US circuits, and there is the possibility that a re-drafted arbitration agreement might preclude access to the courts in other cases. After all, "It goes without saying that there is a strong federal policy in favor of arbitration." Jones v. Halliburton, No. 08-20380 (5th Circuit, 2009) at 9. At least one court has held that Halliburton's arbitration agreement required arbitration of a sexual assault case. Barker v. Halliburton Co., 541 F. Supp. 2d 879 (S.D. Tex. 2008).

The reason that a criminal trial is unlikely in this case is that Halliburton mishandled the rape kit, so there's not enough evidence for a criminal case, which has a higher standard of proof than a civil case.
posted by fogovonslack at 12:27 PM on October 19, 2009 [27 favorites]

Yeah, I'm not clear as to why this should be the case. Was there no criminal law enforcement in Iraq? Are these people beyond the reach of both US and Iraqi criminal law? How the hell does that shit happen?

My understanding is that all US military contractors were, based on contracts(?), not subject to Iraqi jurisdiction, which is how you had things like Blackwater running other cars off the road and shootings at people randomly for shits and giggles and getting away with it. Because the events weren't happening in the US, they were beyond DOJ civil jurisdiction, and because the contractors were not part of the military, they aren't within the jurisdiction of military courts. It was a stupid way to set things up, but because it all happened under Bush, Cheney, and Rumsfield, unsurprising, since all three were basically Haliburtons bitch. What the law should be changed to say is that all military contractors for the US continue to be subject to US jurisdiction and US laws for any and all crimes, but again the Republicans would get all up in arms about the rights of corporations if someone tried to pass a law like that.
posted by Caduceus at 12:30 PM on October 19, 2009 [1 favorite]

Am I the only one who noticed this amendment to the bill?

SA 2598. Mr. BROWNBACK (for himself, Mr. Dorgan, and Mr. Inouye) submitted an amendment intended to be proposed by him to the bill H.R. 3326, making appropriations for the Department of Defense for the fiscal year ending September 30, 2010, and for other purposes; as follows:

At the appropriate place, insert the following:

SEC. __X. APOLOGY TO NATIVE PEOPLES OF THE UNITED STATES.

(a) Acknowledgment and Apology.--The United States, acting through Congress--

(1) recognizes the special legal and political relationship Indian tribes have with the United States and the solemn covenant with the land we share;

(2) commends and honors Native Peoples for the thousands of years that they have stewarded and protected this land;

(3) recognizes that there have been years of official depredations, ill-conceived policies, and the breaking of covenants by the Federal Government regarding Indian tribes;

(4) apologizes on behalf of the people of the United States to all Native Peoples for the many instances of violence, maltreatment, and neglect inflicted on Native Peoples by citizens of the United States;

posted by aquathug at 12:31 PM on October 19, 2009 [4 favorites]

It's one of those things that just short-circuits your brain. I'm surprised more advantage wasn't taken of it.

I'm surprised Goldman Sachs and the rest of Wall Street haven't set up trading desks in Iraq. No SEC, no DOJ and Iraqi authoroties not allowed to touch them? It must be every investment bank wet dream.

Hell what with the US sending pallets of Dollars in cargo planes that usually end up unaccounted for they won't even feel homesick.
posted by PenDevil at 12:36 PM on October 19, 2009 [1 favorite]

How would we even know if more advantage was or wasn't taken advantage of it?
posted by small_ruminant at 12:39 PM on October 19, 2009 [5 favorites]

If they can lock Lynddie England away, I'm not understanding how they can't find away to do the same thing with these rapists?

It's easy to make a scapegoat out of someone who is otherwise powerless and disposable to her employers.

It's harder to make a scapegoat out of a vague mercenary outfit or corporation, without treading on the toes of a handful of wealthy, connected elite.
posted by Blazecock Pileon at 12:45 PM on October 19, 2009 [4 favorites]

Yes, the Feingold bill is broader. On the other hand, it's not uncommon for appropriations bills to include clauses restricting government funds to organizations that meet certain qualifications.
posted by KirkJobSluder at 12:47 PM on October 19, 2009 [1 favorite]

As a Repubican conservative Christian, I applaud Mr. Franken. Well done, sir.
posted by DWRoelands at 12:51 PM on October 19, 2009 [6 favorites]

Notably the following 30 (men) voted against this amendment:

Lamar Alexander (R-TN)
John Barrasso (R-WY)
Kit Bond (R-MO)
Sam Brownback (R-KS)
Jim Bunning (R-KY)
Richard Burr (R-NC)
Saxby Chambliss (R-GA)
Tom Coburn (R-OK)
Thad Cochran (R-MS)
Bob Corker (R-TN)
John Cornyn (R-TX)
Mike Crapo (R-ID)
Jim DeMint (R-SC)
John Ensign (R-NV)
Mike Enzi (R-WY)
Lindsey Graham (R-SC)
Judd Gregg (R-NH)
James Inhofe (R-OK)
Johnny Isakson (R-GA)
Mike Johanns (R-NE)
Jon Kyl (R-AZ)
John McCain (R-AZ)
Mitch McConnell (R-KY)
James Risch (R-ID)
Pat Roberts (R-KS)
Jeff Sessions (R-AL)
Richard Shelby (R-AL)
John Thune (R-SD)
David Vitter (R-LA)
Roger Wicker (R-MS)

Wyoming is two-for-two! YEAH!
posted by elder18 at 1:06 PM on October 19, 2009

the bill's point is that it does not allow government contracts to be given to companies if their arbitration agreements include sexual assault

That statement is both overbroad and overnarrow. It does not apply to all government contracts, only to those funded by the 2010 Defense appropriation. Contractors abroad for other departments - the State Dept comes to mind - are not covered by the bill. It does apply to sexual assault, and many other things which are relatively quotidian. Not just sexual assault, but all manner of harassment and discrimination

If a guy wants to bring suit because, say, some defense contractor company allows three months paid maternity leave but only two months paid paternity leave, that dispute is barred from arbitration by operation of this bill.

Keep in mind that not all defense contractors are Blackwater. This case is (thankfully) rare. It is the exception to the rule. By and large we aren't talking about protecting rape victims. We're talking complaints that the ladies at Lockheed Martin have better toilet paper to deal with lady problems and it's just not fair to the guys boo hoo wah wah wah getting elevated to federal court as a matter of law.
posted by jock@law at 1:12 PM on October 19, 2009 [1 favorite]

Of course, some of those men are arguing that mandatory binding arbitration is in the best interest of sexual assault survivors because it keeps their case out of the public record and eye. But cases can still go to voluntary arbitration under the Franken amendment, and mandatory binding arbitration takes away key legal options, has few recourses for appeal, and takes significant pressure off the company to do the right thing.
posted by KirkJobSluder at 1:12 PM on October 19, 2009 [1 favorite]

Political contributions from Haliburton employees

Contributions from Haliburton's board of directors

Haliburton's political influence:

Halliburton is one of the largest energy company contributors to both Republican and Democratic candidates for Congress. These contributions total $150,514 to the 110th US Congress (as of the third quarter), the largest of which has been to Rep. John Cornyn(R-X) for $10,000. Rep. Cornyn, for his part, has consistently voted with the coal industry on energy, war and climate bills.[7]

posted by lysdexic at 1:16 PM on October 19, 2009 [1 favorite]

they were beyond DOJ civil jurisdiction

This part I don't get; we have a law that says anything that would be illegal to do here, is illegal to do anywhere, for a US citizen, which the DOJ uses to prosecute sex tourists going overseas. I fail to see how they couldn't have chosen to apply that law here.
posted by nomisxid at 1:18 PM on October 19, 2009 [3 favorites]

We're talking complaints that the ladies at Lockheed Martin have better toilet paper to deal with lady problems

*blink* Are you for real?
posted by Blazecock Pileon at 1:28 PM on October 19, 2009 [1 favorite]

Blazecock Pileon: I assure you that the level of stupidity of some claims is truly astonishing
posted by jock@law at 1:31 PM on October 19, 2009

If the issue is that there are too many spurious cases then my counter-argument is two-fold: one, most truly spurious cases are dismissed fairly quickly and two, there's no law saying we can't simply fund the justice system better. Like the old joke goes - cheap, fast, ACTUAL JUSTICE: pick any two.
posted by GuyZero at 1:36 PM on October 19, 2009 [4 favorites]

We're talking complaints that the ladies at Lockheed Martin have better toilet paper to deal with lady problems

Cite?
posted by bitter-girl.com at 1:38 PM on October 19, 2009 [1 favorite]

Blazecock Pileon: I assure you that the level of stupidity of some claims is truly astonishing

Instead of assuring us, why don't you demonstrate with some actual links.

Also, how are they barred? The bill eliminated manadatory arbitration; my reading of it isn't that the bill bans arbitration altogether. Maybe I am misreading it -- can you point out where arbitration is now barred under federal law?
posted by Astro Zombie at 1:40 PM on October 19, 2009 [3 favorites]

Blazecock Pileon: I assure you that the level of stupidity of some claims is truly astonishing

No kidding.
posted by Blazecock Pileon at 1:40 PM on October 19, 2009 [20 favorites]

This part I don't get; we have a law that says anything that would be illegal to do here, is illegal to do anywhere, for a US citizen, which the DOJ uses to prosecute sex tourists going overseas. I fail to see how they couldn't have chosen to apply that law here.

The short version is that the DOJ didn't want to be responsible for contractors in Iraq. If they wanted to or had been told to, they'd have been responsible.

There are practical reasons--it would be much harder to prosecute a mercenary who shoots up a car in Baghdad than a gang-banger in LA. But mainly, I think, because any prosecution of mercenary crimes by the DOJ would hurt the Bush Administration's efforts there, tarnishing the image of American liberators.
posted by fatbird at 1:42 PM on October 19, 2009 [2 favorites]

jock@law: "If a guy wants to bring suit because, say, some defense contractor company allows three months paid maternity leave but only two months paid paternity leave, that dispute is barred from arbitration by operation of this bill."

what's the quote in the bill that bars arbitration as an option? It's my understanding that this prevents a company from requiring arbitration and still receiving government money.
posted by shmegegge at 1:42 PM on October 19, 2009 [5 favorites]

jock@law: First of all, with the exception of the toilet paper thing, which is just you being fighty, everything you describe is already prohibited under federal law, if not state law. Family medical leave for pregnancy or to care for a newborn is 12 weeks. The Franken amendment doesn't expand the scope of Title VII, where federal courts have jurisdiction.

But the Franken amendment doesn't bar all forms of arbitration. It only bars mandatory binding arbitration agreements. In practice, the federal court system is an avenue of last resort, as other labor-management grievance procedures are cheaper and easier for all parties. Voluntary arbitration is still an option.
posted by KirkJobSluder at 1:45 PM on October 19, 2009 [2 favorites]

Jon Stewart discussed this on his show last week--complete with outing the hypocrisy involved.

Maddow brought it up a bit earlier.

I've noticed quite a few instances of Stewart recycling Maddow's findings (e.g., the "porn makes you gay," and "obamacare is like pol pot").

Quick note - the relevant section is halfway through the video clip, but the Ensign interview is also interesting.
posted by IndpMed at 1:49 PM on October 19, 2009

Keep in mind that not all defense contractors are Blackwater. This case is (thankfully) rare. It is the exception to the rule. By and large we aren't talking about protecting rape victims. We're talking complaints that the ladies at Lockheed Martin have better toilet paper to deal with lady problems and it's just not fair to the guys boo hoo wah wah wah getting elevated to federal court as a matter of law.
posted by jock@law at 4:12 PM on October 19

Yes, that's right, getting rid of mandatory binding arbitration - which has long been used by corporations seeking to deny their employees justice in a fair and impartial courtroom, in favor of an arbitrator whose future earnings potential is contingent upon finding in favor of said corporation - will somehow clog the courts with Lockheed Martin engineers suing their employer over toilet paper. YAGBTWWFL.
posted by zoomorphic at 1:52 PM on October 19, 2009 [6 favorites]

Hmm, I'm confused, jock@law. You seem to be saying that the bill prohibits arbitration of employee disputes for certain entities receiving certain funds. From my two second read through, though, it looks like it bars funding for entities with mandatory arbitration clauses as a condition of employment. "No mandatory arbitration as a condition of employment" does not equal "no arbitration at all," if I'm reading correctly. Have I missed something? Is there something in there that says "thou shalt not arbitrate?"
posted by bepe at 1:54 PM on October 19, 2009

we have a law that says anything that would be illegal to do here, is illegal to do anywhere, for a US citizen, which the DOJ uses to prosecute sex tourists going overseas.

Sex tourism is explicitly prohibited by federal law. Can you cite a law saying (or court case interpreting) that anything illegal here is automatically illegal if done by a U.S. citizen elsewhere? I hadn't heard of such a thing. (This isn't meant as snark; I'm just a legal ignoramus hoping to learn something.)
posted by Zed at 1:56 PM on October 19, 2009 [3 favorites]

Wow, many thanks to fogovonslack. I've asked before how "binding arbitration" makes sense; apparently the answer is "It doesn't, but legislatures haven't all caught up yet."

Getting rid of it for government contractors ought to be just the start. "If we violate your rights, we still get to hold you to every detail of a contract" is nonsensical in any context.
posted by roystgnr at 1:57 PM on October 19, 2009

BTW the majority of the KBR employees in Iraq are not technically mercenaries. IOW they're not paid killers. Their logistics service employees. Including cafeteria workers and stuff like that. Which is even more pathetic that they use Iraq as some sort of anarchy free-zone to rape and murder without repercussion.

And why it doesn't make any sense that they require their employees to carry these kind of absurd risk riders like the company has to hire bands of cut throats to do it's vital mission. It's vital patriotic mission to serve square cut cafeteria pizza.

Vital patriotic pizza to the real military guys that actually go and risk their lives and have some sort of code of justice governing them.

BTW. Reading that Wiki link about Jamie Leigh Jones and the description of her rape and subsequent vile treatment fills me rage.
posted by tkchrist at 2:01 PM on October 19, 2009 [3 favorites]

Astro: You're entirely correct. As I said way above, they won't be LEGALLY unarbitrable. Saying the arbitration itself was barred was inaccurate and I apologize. However, most plaintiffs don't know enough about arbitration for it to come readily to mind; and their lawyers - often billed hourly - are disincented from suggesting it. This is why I said - again above - that I think it would de facto bar it.

Actually, what I would like to see happen is for the amendment to pass, and contractors to work around it. Thinking about it a bit more, the actual effect is not necessarily going to be an end to arbitration clauses in contracts -- it might be that the clauses become optional, and employers will have to explain the costs and benefits of arbitration to incoming employees in order to get them to check that particular box.

While I don't see a problem with arbitrating Title VII claims, I am not particularly a fan of contracts of adhesion.
posted by jock@law at 2:03 PM on October 19, 2009

YAGBTWWFL -- I'm sorry, unless you're roaring not unlike chewbacca in rage over this issue, can you help me understand what that means? Google, it does nothing.
posted by cavalier at 2:09 PM on October 19, 2009 [1 favorite]

The justification I've heard is that the bill was a "political attack" on the fine young men and women who work at Halliburton and KBR.

Yes, we must protect all those fine young men and women ... unless one of them happens to be a pesky rape victim - fuck those nuisances.
posted by madamjujujive at 2:14 PM on October 19, 2009 [1 favorite]

Also, you know guys, it's really not cool to call people fighty, or a troll, or whatever. Yes, I have gotten worked up in the past. I'm having a genuine conversation with you here. You could show a little good faith back. Thank you.
posted by jock@law at 2:20 PM on October 19, 2009 [2 favorites]

YAGBTWWFL


You're A Great Boon To (the) World-Wide Football League?

Yes, And Great Big Tentacles Whip While Flailing Languidly?

Young And Greedy Bicyclists Tirelessly Wheel Willfully For Love?
posted by ricochet biscuit at 2:21 PM on October 19, 2009 [3 favorites]

Yes, there are multiple types of arbitration here. The key concepts are:

voluntary vs. mandatory: Voluntary arbitration is agreed to by both parties in an effort to reduce the costs of litigation, while mandatory arbitration is usually imposed as a condition of a contract.

non-binding vs. binding: Parties in non-binding arbitration reserve the right to appeal to the court system, while courts generally only recognize appeals to binding arbitration agreements in extreme cases.

It's my impression that most lawyers have few problems with arbitration, but then again, I think only a minority of lawyers actually make their living by actually going to court.

And in this case, it seems that a few companies involved have some serious, reoccurring problems with sexual harassment on their watch and have gamed the legal system and employee contracts to avoid really dealing with it. It defeats the entire purpose of Title VII if organizations can duck responsibility by forcing employees into a kangaroo court of arbitration.
posted by KirkJobSluder at 2:22 PM on October 19, 2009 [1 favorite]

Yes, we must protect all those fine young men and women ... unless one of them happens to be a pesky rape victim - fuck those nuisances.

Oh definitely. Regardless of what I think the merits of the bill are, the woman should definitely be allowed some recourse.

I wonder how well it would work to have a semi-adjunct system of arbitration. Courts already have official mediators. It would be interesting to see what the private arbitration analog of bankruptcy courts - by operation of the arbitration contract rather than by virtue of being an Article I court - would look like, with decisions appealable to the District Court.
posted by jock@law at 2:26 PM on October 19, 2009

I don't care if it's a shitty law. We have plenty of those. Kudos to Franken for bringing this horrible story to light. I remember reading about it a while ago and being completely dumbstruck with rage and horror.
posted by billyfleetwood at 2:27 PM on October 19, 2009 [3 favorites]

employers will have to explain the costs and benefits of arbitration to incoming employees in order to get them to check that particular box

I suspect that you have a rather naïve view of arbitration, which can be successful in commercial settings, where you've got two parties on roughly equal footing arguing over a matter of law, or resolving an ambiguity in a contract. Only a fool of an employee would willingly agree up front to mandatory binding arbitration against his employer. That's why most employees don't "agree", but sign on the dotted line anyhow. I'm not sure what you mean by "optional" arbitration, but you seem to think that once the mysteries have been explained to the newbie he'd be happy to agree to binding arbitration thereafter. I doubt it.
posted by lex mercatoria at 2:34 PM on October 19, 2009 [1 favorite]

Yet Another George Bush... yeah, I dunno.
posted by box at 2:36 PM on October 19, 2009

It's unbelievable that the DOJ isn't planting their foot up a lot of rear ends over this. I wish it were more unbelievable.

Beyond that - in what world do these people live? They don't have daughters, wives, mothers? They think somehow that allowing for this situation to exist is ok for the environment?
(Yeah, yeah the Milgram experiments with personal conscience - authority, all that. But there was at least some degree of deniablity there in the proximity and not directly seeing the effects. Here - her implants broke and her pectorals ripped because what, she walked into a door?
Again, unbelievable anyone would allow this to happen to someone else. I wish it were more so.
posted by Smedleyman at 2:39 PM on October 19, 2009 [4 favorites]

What is it about being a federal military contractor - instead of a federal state department contractor or any of the other types of federal contractor, or any other employer for that matter - that makes arbitration of employment contracts unworkable?

In all seriousness, jock, the asserted important difference is the difference in the proportion of women who work for federal military contractors and are raped by their co-workers and the proportion of women who work for other employers and are raped by their co-workers.

I don't claim any knowledge of what those rates might be.
posted by ROU_Xenophobe at 2:48 PM on October 19, 2009 [1 favorite]

lex mercatoria: I never said anything about "'optional' arbitration." I think you may be confused about the difference between arbitration itself and the contractual clauses that subject a relationship to arbitration. There's no such thing as optional arbitration - there's mediation, which I suppose you could describe as "optional arbitration" (a mediator suggests an outcome and the parties either agree or don't).

I thought I was clear in my previous post but maybe I wasn't. What I meant by "the clauses become optional" are that the provisions in the contract that say "hey, arbitration governs this employer-employee relationship" would be negotiated during orientation of new employees, rather than offered on a take-it-or-leave-the-company basis.

You seem to think that arbitration is bad for the little guy. I don't see that. Some people seem to want to present that point summarily. I think it's a mistake to make summary conclusions when discussing matters of public policy. Personally, I'd prefer arbitration. As a little guy, my pockets are smaller, and overall arbitration costs less than court litigation. Yes, arbitration is a little bit pay-to-play. Last I checked, so was major federal litigation.

Perhaps I am naive. However, I think informing people you think are uninformed is a lot better than calling them names. Do you have a couple of cites showing that similar-situated individuals got more of a fair shake in federal court than in arbitration, or that it cost them less in federal court than in arbitration? I'd be interested to read those studies.
posted by jock@law at 2:54 PM on October 19, 2009

Al Franken is the best. I hope he runs for President in 2016. Especially if he can find a running mate named Stein. Having donated to his campaign, I now get regular updates via email, which are usually really great and almost always start with stuff like this:

One of the best parts of my week comes Wednesday morning, for two reasons. One, I get to talk with a bunch of Minnesotans at our weekly constituent breakfast. And two, said breakfast is Mahnomen Porridge — a Minnesota treat made from wild rice. If you haven't had it, trust me, you don't know what you're missing. So I'll tell you — you're missing something delicious.

Plus, he can draw an amazingly accurate map of the US from memory.
posted by snofoam at 2:55 PM on October 19, 2009 [3 favorites]

I don't care if it's a shitty law. We have plenty of those. Kudos to Franken for bringing this horrible story to light...

I would rather the legislature pass good laws and the media report good stories. If it's a "shitty law", it should not have been a bill.
posted by esprit de l'escalier at 2:59 PM on October 19, 2009

"the woman should definitely be allowed some recourse."

Just some?
posted by Gamien Boffenburg at 3:04 PM on October 19, 2009

I'm not convinced this is a shitty law. It actually addresses, and seems like it will solve, the problem that Franken sought to solve. I think it probably could have been applied more broadly, because I think companies that force their employees to sign mandatory arbitration agreements are almost certainly doing it for their sake, and not because it will be better for both them and the employee. But had it been written more broadly, it might not have passed, and the only downside I can see to this is the hypothetical tale of contractors suing their bosses for being reverse sexist against men where toilet paper is concerned. If that comes up, I will reexamine my feelings at that point.
posted by Astro Zombie at 3:10 PM on October 19, 2009 [1 favorite]

Also, you know guys, it's really not cool to call people fighty, or a troll, or whatever. Yes, I have gotten worked up in the past. I'm having a genuine conversation with you here. You could show a littlegood faith back. Thank you.

Well, the description of 'fighty' was an apt response to your otherwise undefended plush toilet paper example, and the discussion of 'hard trolling' was, I thought, a rather polite response to some egregious statements that calmly invited from you a further opportunity to clarify your purportedly bizarre position. I think you have been shown respect in this thread, and I think it would behoove you to reciprocate it and be a little more self-aware of your own rhetoric and self-positioning. You have revised your arguments multiply without substantive concession of your previous, erroneous points, and have now occupied a substantial portion of an interesting thread with what in hindsight appears to have been a somewhat off-the-cuff argumentation more predicated on contrarianism than legitimate concern for principles. But thanks for attempting courtesy, and plenty of people do seem to want expert-type opinion, so by all means continue filling that void. But fightyness and trolling are legitimate concerns, and if you want to get into a discussion of the definition of these terms and their relation to your behaviour, I'm sure there will be a time and a place for that.
posted by kaspen at 3:11 PM on October 19, 2009 [6 favorites]

Also, you know guys, it's really not cool to call people fighty, or a troll, or whatever. Yes, I have gotten worked up in the past. I'm having a genuine conversation with you here. You could show a little good faith back. Thank you.

Yes, you are having a genuine conversation here, and it's appreciated. I apologize for bring the word "troll" into it.
posted by fatbird at 3:18 PM on October 19, 2009

YAGBTWWFL

Yesterday's Aardvarks Go Betwixt The White Wobbly Foreign Lions
posted by spaltavian at 3:19 PM on October 19, 2009 [2 favorites]

I guess the Republicans would have voted against this bill too.
posted by ryoshu at 3:19 PM on October 19, 2009

“If it's a "shitty law", it should not have been a bill.”

Well, yeah, I have to agree. But this is exactly politics. Folks say that word in a bad way, with some justification, a lot of the time. But what do you do when the DOJ just blows off prosecution?

There’s a case to be had here the whole arbitration issue aside. They’re a U.S. based company, she’s a U.S. citizen, the DOJ could hand KBR a hell of a lot of grief. They’re not doing it.
The structural moves made by the Bush administration in terms of what’s been done in the DOJ and with federal prosecutors holds up a lot to business interests in opposition to elected representatives.

Politics. In a good way, I think. Stuff is being worked out, negotiated, and publicly.

I can’t comment in any productive way on arbitration, but I think in terms of raising awareness of a flaw in the law this is absolutely critical.
Something, clearly, needs to be remedied. We can’t have women beaten and raped and have the offenders just get off scott free because of some Byzantine trade law. That way lay chaos.
While I have to agree some sort of ad hoc thing is crazy and counterproductive (and I don’t know that this is, but in principle, the Terry Schiavo sort of thing I oppose), the law is supposed to serve people’s needs and if it can’t protect people from rape and assault what f’ing good is it?
That’s not even considering the blowback and reiterations. If it were my wife I’d have some people’s balls on my desk. One of the things the law is supposed to do is to prevent that.
If she or her husband put some hurt on some people involved in this and was arrested and put on trial and I were on the jury knowing that the DOJ blew this off and the company is doing some finagling to escape prosecution, I’d have a pretty hard time convicting them of anything.
And it might be right. But it wouldn’t be the law. But if companies are going to use the law to cover rapists, make it what a perk? and lawmakers are going to support that, what possible respect can there be for the law?

Looks to me like arbitration takes advantage of a power and information disparity. I accept that it probably has some useful attributes. This sure as hell isn’t one of them though.
posted by Smedleyman at 3:34 PM on October 19, 2009 [3 favorites]

But thanks for attempting courtesy, and plenty of people do seem to want expert-type opinion, so by all means continue filling that void.

Jock@law is not an expert. He is not an attorney. And even if he were, his knowledge of arbitration is scattershot at best. Whether he is being purposely misleading or obtuse, I don't know.

You seem to think that arbitration is bad for the little guy. I don't see that. Some people seem to want to present that point summarily. I think it's a mistake to make summary conclusions when discussing matters of public policy. Personally, I'd prefer arbitration. As a little guy, my pockets are smaller, and overall arbitration costs less than court litigation. Yes, arbitration is a little bit pay-to-play. Last I checked, so was major federal litigation.
posted by jock@law at 5:54 PM on October 19

Arbitrators are chosen by the corporations for whom they do arbitration. There is a financial incentive for the arbitrator to rule in favor of the corporation. Most arbitration clauses prohibit any public release of the arbitration's results, ensuring that only the corporation knows which arbitrators are likely (very, very likely) to rule in their favor. There is a vast discrepancy between findings when they are done in arbitration versus when they are done in a open courtroom, with a neutral judge and discovery. America's largest arbitration firm, the NAF, rules in favor of corporations 96 percent of the time.

Perhaps I am naive. However, I think informing people you think are uninformed is a lot better than calling them names. Do you have a couple of cites showing that similar-situated individuals got more of a fair shake in federal court than in arbitration, or that it cost them less in federal court than in arbitration? I'd be interested to read those studies.
posted by jock@law at 5:54 PM on October 19

I'd prefer that you go to the trouble of educating yourself first before barging into a thread and making laughably wrong ex cathedra "@law" pronouncements.
posted by zoomorphic at 3:38 PM on October 19, 2009 [22 favorites]

Hmm...McCain supports false imprisonment.

Ironic? Maybe not since being taken prisoner in a way is not...false?
posted by Groovytimes at 3:44 PM on October 19, 2009

Well, the description of 'fighty' was an apt response to your otherwise undefended plush toilet paper example

What? It was casually dismissive and far less substantial than the example itself, and the result is that it's not at all clear what people's actual objections to his example are. That's it's so silly it would never happen? I don't think we really need a cite for the idea that surprisingly frivolous claims can end up having to be seriously deliberated under the law.

I think you have been shown respect in this thread, and I think it would behoove you to reciprocate it and be a little more self-aware of your own rhetoric and self-positioning.

Some people have been arguing respectful, but others haven't, and from my standpoint, jock@law is being far more careful about his rhetoric than some of those who've answered him.

You have revised your arguments multiply without substantive concession of your previous, erroneous points

Yeah, it sucks when people refine their viewpoints in a discussion.
posted by weston at 3:44 PM on October 19, 2009 [3 favorites]

we have a law that says anything that would be illegal to do here, is illegal to do anywhere, for a US citizen, which the DOJ uses to prosecute sex tourists going overseas

It isn't precisely a law, but you're obviously thinking of extraterritorial jurisdiction (not to be confused with universal jurisdiction). It is primarily used in terrorism cases.

There is in fact a Military Extraterritorial Jurisdiction Act with some relevance here -- in this case, the law was drawn narrowly and the specific Jones case would apparently be excluded. There were calls for it to be applied, though.
posted by dhartung at 3:50 PM on October 19, 2009 [2 favorites]

We're talking complaints that the ladies at Lockheed Martin have better toilet paper to deal with lady problems and it's just not fair to the guys boo hoo wah wah wah getting elevated to federal court as a matter of law.

Which will be tossed immediately. Who cares?

Arbitration between corporations and individuals should be banned.
posted by delmoi at 3:54 PM on October 19, 2009

Really?

jock@law's comments are the only ones that give insight into why someone would vote against the bill. There were a lot of republican jokes upthread-- do you believe that they really care more about corporations than women being raped? ("Rape-OK"?!) I don't believe things are that simple.
posted by esprit de l'escalier at 3:57 PM on October 19, 2009

(okay, not the only ones, but very convincing ones for me.)
posted by esprit de l'escalier at 4:00 PM on October 19, 2009

most plaintiffs don't know enough about arbitration for it to come readily to mind; and their lawyers - often billed hourly - are disincented from suggesting it.

Bullshit. The foundation of the plaintiff's bar is the contingent fee case, particularly in personal injury cases like this. I daresay you would be hard pressed to find any plaintiff's lawyer that bills hourly, let alone "often."
posted by minimii at 4:01 PM on October 19, 2009 [1 favorite]

Arbitration between corporations and individuals should be banned.

I suspect the problem isn't with the concept of arbitration, it's with the selection of the arbitrator on top of the already unequal relationship. Banning arbitration between those parties might fix the former problem, but you're still left with the later which includes all the larger problems of inequity in the legal system.

I'd think a better solution would be to address the fairness of the selection process. And perhaps the acceptance of arbitration as a condition for employment.
posted by weston at 4:12 PM on October 19, 2009 [3 favorites]

do you believe that they really care more about corporations than women being raped? ("Rape-OK"?!) I don't believe things are that simple.

As a matter of fact I do think they care more about corporations than about rape, and I think it really is that simple. I think people in business and politics can reach a point where they really believe that if you're not worth $100,000,000 you're just a pawn to be used, and you are not to be permitted to threaten the plans of Real People That Matter.

I think what they think about Jamie Leigh -- what they have all but come out and said in plain English -- is that while her rape was unfortunate, it can't possibly justify such a large threat to an established business model. I think that's exactly what they are saying. The corporate person does not care about rape; rape does not show up on its balance sheet, rape is not part of the business plan, rape neither makes nor costs money, so rape doesn't exist. But changes to laws that affect contract wording and might cost money most definitely do exist and must be resisted when they threaten the stability and profitability of what the company is doing.

The human representatives who put forth these policies may have to go home and talk it over with their good friend Jack Daniel once in awhile, but they know that if they exhibit too much compassion the beast will simply expel them; it won't do any good and will simply cast them from the pool of People That Matter. And so they toe the line, and the conscience wears out and la-di-da.
posted by localroger at 4:14 PM on October 19, 2009 [58 favorites]

Saying the arbitration itself was barred was inaccurate and I apologize. However, most plaintiffs don't know enough about arbitration for it to come readily to mind; and their lawyers - often billed hourly - are disincented from suggesting it. This is why I said - again above - that I think it would de facto bar it.

Now this is blithering nonsense. You think that minimum wage workers have ten of thousands of dollars to pay lawyers to waste time on frivolous lawsuits? If it is a weak case any attorney is going to want the deed to the house before they take on such a case, if they even have a house. In reality only the best cases are going to go to trial and those will be on a contingency basis because of the high probability of prevailing. The weaker cases will "de facto" go to arbitration because no lawyer will waste his time on a case that doesn't pay, exactly the opposite of your claim above.
posted by JackFlash at 4:15 PM on October 19, 2009 [2 favorites]

That may be, localroger, and I'm tempted to believe it, but it's a pretty goddamn ugly world. It's too bad that dissenting positions don't explain their votes.
posted by esprit de l'escalier at 4:23 PM on October 19, 2009

Finally, Jones says, she convinced a sympathetic guard to loan her a cell phone so she could call her father in Texas.

"I said, 'Dad, I've been raped. I don't know what to do. I'm in this container, and I'm not able to leave,'" she said. Her father called their congressman, Rep. Ted Poe, R-Texas.

I wonder if any of those thirty bastards have children? I wonder what they'd do if they got a call like that from their daughter?
posted by Civil_Disobedient at 4:26 PM on October 19, 2009 [3 favorites]

Not sure if I ever related the story of my brother and one of these contract outfits. When he was getting set to leave the military he was woo'd by one these outfits that was doing work for the state department and Army in the Balkans and Kosovo. He was a pretty good catch for them. Air Cavalry experience. Combat experience. Was a high level trainer. Graduate degree in Economics. Was leaving the Army as a Major.

It took a turn for the surreal when the Contractor recruiter guy he was meeting with began talking about what essentially he implied were kickbacks from brothels and the fact you could off somebody without a pesky UOF hearing and shit like that. And they guy went on and on about how easy and sex starved the chicks were in the Balkans. It made my brother so angry that this former REMF was all tough and gung-ho NOW and was clearly proud to be undermining what the actual service guys were trying to achieve over there.

I guess he threw him out, swearing, and tussling, down the halls of his office and left word with the gate sergeant to shoot the guy if he ever came back.
posted by tkchrist at 4:48 PM on October 19, 2009 [7 favorites]

I wonder what they'd do if they got a call like that from their daughter?

Can you imagine that. God, the blind impotent rage one would feel. I feel it now and she isn't even my daughter. And we sometimes ask ourselves why people hire hit men. I think that's your answer.
posted by tkchrist at 4:52 PM on October 19, 2009 [3 favorites]

CD: I wonder what they'd do if they got a call like that from their daughter?

They know they will never get a call like that from their daughter. People That Matter don't get calls like that. True their sons die, but always heroically and never because of stupid mistakes. Nobody ever hears of their daughters being raped because first, people know better than to rape the daughters of People That Matter and second, should someone be uncouth enough to do that then the local powers know better than to lock her in a shipping container and third, power is available to take care of the matter without it landing on the evening news. Indeed, the matter not landing on the evening news is paramount. The daughter will cement her own seat at the table by keeping quiet, careers will be ruined and hit men hired, and everyone will have a nice meal and congratulate themselves on settling the matter satisfactorily.

The plot of The General's Daughter notwithstanding.
posted by localroger at 5:29 PM on October 19, 2009 [4 favorites]

esprit de l'escalier, the world can indeed be pretty goddamn ugly. It can also be breathtakingly beautiful. I tend to live by the principle of trying to see it all as it is, instead of how I wish it would be. That is sometimes very difficult. It's no joke that when you stare into the Void the Void stares back, and that's a staring match you can't exactly win because the Void doesn't have any fucking eyelids.

We learned much in the last century but one of the things we learned, undeniably, is that mortal humans are capable of a level of depravity and evil that our ancestors once thought belonged only to the gods. We no longer need a volcano or meteor to wipe out a whole city without warning; we can do it ourselves, and mortal humans consciously put their fingers on the buttons to make it happen, when they clearly had the choice not to.

That is a terrible thing, and the likelihood that we are all capable of doing things like that is more terrible still. But the first step to dealing with a thing is understanding it, and we cannot understand what we pretend does not exist.
posted by localroger at 5:42 PM on October 19, 2009 [4 favorites]

God, the blind impotent rage one would feel. I feel it now and she isn't even my daughter.

I felt the same way when I read the affidavit. And I don't even have any children.

Did you know she'd been sexually coerced in Texas even before she left for Iraq? And that her boss threatened to give her a bad report when she tried to get out (and did, incidentally)? And that just a couple of days before she was gang raped, she expressed her worries to a slew of officials, and they told her to go to a spa. Aw, little lady needs a manicure. And some dick in her ass. And a ruptured breast implant. They screwed her so forcefully that they ruptured her implants. It's not an exaggeration to say they treated her like a piece of meat. Literally, like a slab of beef. Inflatable dolls are treated less roughly. And then they threw her in a shipping box to bleed and die.

There are serial killers who treated their victims better than this.

Charles Boartz should be rotting in prison right now.
posted by Civil_Disobedient at 5:58 PM on October 19, 2009 [7 favorites]

I really like what you've written localroger.

You know what's ironic though? We got into to this discussion when I suggested that things might not be that simple as republicans are evil. I'm all for grappling with the truth (rather than feeding my prejudices) which is why I suggested that jock@law's contributions to thread are helpful.

I described that world view as "goddamn ugly", and you rightly pointed out that you have to stare at ugly truths rather than running from them. But, another danger is accepting the wickedness as immutable because one doesn't want be challenged to act or change his mind. Sometimes, when people feed a nefarious image of a group, in this case republicans, they are doing so out of intellectual laziness.
posted by esprit de l'escalier at 6:17 PM on October 19, 2009

The corporate person does not care about rape; rape does not show up on its balance sheet, rape is not part of the business plan, rape neither makes nor costs money, so rape doesn't exist

Confess! You stumbled across an unpublished Dickens manuscript in your attic, didn't you.

I keep bumping my head against the fact that our politicians belong to their corporate masters yet corporations do not vote, people vote. If only we, The People, could figure out that it is better to work together and throw da bums out then it is to score one for the team. At this point an impossible dream because let's face it-- the Democrats vs Republicans war has heated up beyond all reason during the last 25 years alongside the rise of Corporate Personhood. Coincidence?
posted by Secret Life of Gravy at 6:32 PM on October 19, 2009 [1 favorite]

Arbitration between corporations and individuals should be banned.
posted by delmoi at 5:54 PM on October 19

Or done properly.

I briefly worked for the Nova Scotia Human Rights Commission. They had a staff of lawyers who researched cases between employers and employees, where the employer was alleged to have discriminated against the employee on the basis of something protected by the Nova Scotia Human Rights Act (eg race, sex, disability, etc). People could also bring complaints against their town or school or the police or whathaveyou. If they couldn't come to an agreement, they generally went to mediation. The mediators were paid by the government. They were paid the same no matter who they favoured. Their decisions were based on the Act and eventually get posted online (I see currently they don't have any 2009 cases posted).

If there's a mechanism whereby the arbitrator isn't rewarded or penalized for deciding one way or the other, arbitration can be quite valuable.
posted by joannemerriam at 6:48 PM on October 19, 2009 [3 favorites]

Boy, I'd like to favorite this comment more than once.
posted by dubitable at 7:07 PM on October 19, 2009

I described that world view as "goddamn ugly", and you rightly pointed out that you have to stare at ugly truths rather than running from them. But, another danger is accepting the wickedness as immutable because one doesn't want be challenged to act or change his mind. Sometimes, when people feed a nefarious image of a group, in this case republicans, they are doing so out of intellectual laziness.

The majority of politicans are scumbags. Obama, while probably one of the better ones, has made an awful lot of compromises in order to get where he has. The really bad ones, like the shitheads that voted against this bill and tried to make up bullshit reasons why they are against it but wouldn't in a million years offer a viable alternative 'cause they really don't give a fuck about women have compromised just about all there is in themselves. Pretending this isn't the case is the true intellectual laziness that goes alongside the moral laziness that so deeply penetrates our government and the upper echelons of business in this country and the world.
posted by dubitable at 7:12 PM on October 19, 2009

If contractors are so protected as to be able to do this to one of their own, what the fuck do you think is happening on the ground in our little nation-building experiment over there?
posted by johnnybeggs at 8:31 PM on October 19, 2009 [1 favorite]

If they couldn't come to an agreement, they generally went to mediation. The mediators were paid by the government. They were paid the same no matter who they favoured. Their decisions were based on the Act and eventually get posted online (I see currently they don't have any 2009 cases posted).

How is this qualitatively different then them going before a judge in a civil suit? Why not use the system that is in place? It seems very strange that you would set up a separate parallel path justice system?

My issue with mandatory arbitration is that we already have a system to handle these disputes.Having a separate parallel justice system seems like its asking for trouble (much like the venue shopping seen in federal patent litigation). Does anyone know why it is actually cheaper? Are there not enough judges in the civil courts? I imagine you would still have to have lawyers even in arbitration if you were going to have them in court.
posted by TheJoven at 9:12 PM on October 19, 2009

Does anyone know why it is actually cheaper? Are there not enough judges in the civil courts? I imagine you would still have to have lawyers even in arbitration if you were going to have them in court.

Arbitration is not always cheaper or faster than litigation, although it certainly can be. Nothing about arbitration makes lawyers any less necessary, either.

Arbitration hearings and other forms of alternative dispute resolution (such as mediation) appeal to corporations such as KBR due to several factors, but chief among them is the flexibility of arbitration. The parties can draw up their own rules of discovery. The parties can draw up their own rules of evidence. The parties can draw up their own timetable as to how to deal with the dispute, and the parties are able to reach solutions which are more creative than one would receive in court.

Of course, such a "creative" solution may involve the "$50 and a gag order" that Franken brings up hypothetically. Further, that flexibility in the rules of discovery and evidence may hinder Ms. Jones as much as it might help her. The power differential between KBR and Ms. Jones does not give me the impression that the characteristics of private arbitration will work in her favor.

Another factor which KBR no doubt finds appealing is how difficult it is to overturn a decision made in binding arbitration. Check the grounds for a rehearing, under the Federal Arbitration Act. Relative to the still-difficult appeal process in litigation, this is pretty harsh.

Our judicial system has evolved to be a certain way for certain reasons. While arbitration works for many disputes, there's a reason why Ms. Jones and Sen. Franken are fighting these mandatory arbitration clauses when it comes to such disputes as her own gang rape.
posted by Sticherbeast at 9:47 PM on October 19, 2009 [3 favorites]

What I would like to know is why binding arbitration doesn't explicitly violate Bolling v. Sharpe & Brown v. Board of Ed..

Is this not the very definition of "separate but equal?"
posted by Civil_Disobedient at 3:40 AM on October 20, 2009

Sen. Franken questions Halliburton lawyer.
posted by WyoWhy at 5:21 AM on October 20, 2009 [3 favorites]

On the subject of what is wrong with our leaders, I think Bob Altemeyer figured it out. In the years since I first read Altemeyer's online book (eye-opening and well worth the time if you haven't) I have not been able to convince myself that this is a problem that can be solved, much as I long to.
posted by localroger at 5:23 AM on October 20, 2009

Civil_Disobedient: What I would like to know is why binding arbitration doesn't explicitly violate Bolling v. Sharpe & Brown v. Board of Ed.

Parties to contracts with arbitration clauses aren't a suspect class or quasi-suspect class under the Equal Protection clause. (Neither are Presidential candidates but we can leave the propriety of Bush v. Gore for another conversation.) Also, Brown and Bolling were limited to the facts (educational settings). "We conclude that in the field of public education the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal." Brown v. Board of Education, 347 U.S. 483, 495 (1954).

zoomorphic: Jock@law is not an expert. He is not an attorney.

I really don't need to defend myself to you. My diploma, license, and job beg to differ with you. It may seem fun to slander anonymous people on the Internet, but it's not really cool. And by the way, the article you linked to? "Despite advocates' concerns, it's unclear whether consumers who go through arbitration are any more likely to get a judgment against them than those who go to court." If you'd like to talk about the other reasons why the rate may seem so skewed, we could do that in a civil manner. I won't engage you, however, if you're going to act so churlish.

PS - where'd you get your law degree?
posted by jock@law at 6:49 AM on October 20, 2009

And you know, this isn't really "a law." It's a clause regarding how the government is going to spend our money.
posted by KirkJobSluder at 7:39 AM on October 20, 2009

The corporate person does not care...

I have a theory about this, please bear with me. Big corporations consist of departments which make decisions based almost exclusively on and relating to their assigned area and do not relate internally as a unit well. The Positive Action Subcommittee (I was a member of one so named, no shit.) does not talk to Facilities Management much. And when they do it is to inform them of a decision they have made, not to request a dialogue. Imagine now say, OilCo: Accounting, based in Houston informs the CFO that transportation costs are 3% above industry average. The CFO quite reasonably, is then looking to cut 3% transportation costs. So they send the memo to Transportation, based in Chicago. If Transpo can't bring their budget in line it's their ass. Transpo, not wanting to eliminate positions and reduce their department and influence and lay off their friends they see every day looks for a short-term quick way to save money. One budget item that might fit the criteria is the second hull addition on this new tanker they are building. They think eliminating it is a bad idea and too much of a gamble but they are already stretched too thin as it is and someone has to make this decision (cue incipient alcoholism) and besides our ships captains and their crews are quite competent, never heard a bad word. Well, of course you can see where this is going but my point is that with the compartmental structure of corporations it is possible to have a big decision that has bad results by making smaller questionable decisions with poor communication amplifying the weakness inherent in their corporate structure. Bad for the corporation too, grounded and leaking tankers are bad business. That's not the worst part though.
The worst part is that the survival of these corporations whose structure produces decisions that appear immoral but are actually amoral is favored over corporations that would somehow make the effectively moral choice because it costs more. The 'moral' company loses money in the short-term and goes out of business, only the amoral remain. This is not to say that some corporations aren't evil, too many come easily to mind. And none of this is a defense of any specific corporation. It's just an attempt to illustrate that corporations themselves are not moral or immoral, they are amoral by structure and usually economically advantaged, at least in the short-term, to do bad things. It should be expected. Which is what really, really makes me angry about those Senators that voted against this sloppily written law (the sloppiness merely disappoints me). They are the ones charged with and have the power to prevent these situations from happening. I hire them via vote and pay them via taxes to protect my interest. I expect corporations to behave as sociopaths. I hope and rely on better from my elected officials.
posted by vapidave at 8:06 AM on October 20, 2009 [2 favorites]

I really don't need to defend myself to you. My diploma, license, and job beg to differ with you

If you've passed the bar since I last noticed you were speaking before thinking, congratulations. Doing so makes you an expert on all facets of all law as well as all public policy, even when your posts betray a complete ignorance of the facts.

"Despite advocates' concerns, it's unclear whether consumers who go through arbitration are any more likely to get a judgment against them than those who go to court."

Yes, because it's fucking binding. There is no recourse for anyone fucked by arbitration except in the case of fraud, which can't be proven because there is no discovery in arbitration. It's a nice little system they've got going.
posted by zoomorphic at 8:09 AM on October 20, 2009

It may seem fun to slander anonymous people on the Internet, but it's not really cool.

Isn't the proper legal term in this context libel?

"In law, defamation–also called calumny, libel (for written words), slander (for spoken words)....In common law jurisdictions, slander refers to a malicious, false and defamatory spoken statement or report, while libel refers to any other form of communication such as written words or images. *

Although, British courts are grappling with the distinction as pertains to chatrooms (live conversations) versus comments made to a website/blog (permanent postings in a more durable form). "In English law, a victim of libel can win damages even if he has not suffered financial loss as a result of the statement. A person who has been slandered must prove that actual damage has been suffered."*
posted by ericb at 8:40 AM on October 20, 2009 [1 favorite]

U.S. Chamber of Commerce Opposed Al Franken’s Amendment to Give KBR Rape Victims Justice

Bad Press From Al Franken Rape Bill, and More, Has U.S. Chamber Blaming…Attorneys???
posted by homunculus at 8:40 AM on October 20, 2009

Duke Law & Technology Review: Anonymity on the Internet & Libel .
posted by ericb at 8:47 AM on October 20, 2009 [1 favorite]

How is this qualitatively different then them going before a judge in a civil suit? Why not use the system that is in place? It seems very strange that you would set up a separate parallel path justice system?
posted by TheJoven at 11:12 PM on October 19

There's a belief that it's cheaper (I don't know if it actually is or not). Also, at least in the case of NS Human Rights Commission, a lot of people just want an apology and for the company/town/school/police/whoever not to do whatever-it-is again, or they want their job back, or the like. From what I understand, and IANAL, it's simpler to have a dedicated staff who deal with this stuff all the time than for people to try to find lawyers willing to take their case pro bono, since they aren't looking for monetary damages.
posted by joannemerriam at 10:50 AM on October 20, 2009 [1 favorite]

And Republicans wonder why they are so often bashed for being social dinosaurs? Jesus.
posted by five fresh fish at 1:35 PM on October 20, 2009

do you believe that they really care more about corporations than women being raped?

I'm very slowly reading Beevor's history of the Spanish Civil War. It's slow reading because it's hard reading. It's hard reading because it's so fucking horrible.

One excerpt concerns a Nationalist officer explaining that he's 'given' a local girl to a corp of North African troops to rape to death. Literally. He calmly explains to a journalist, "She will not last more than four or 6 hours." The Nationalists used their North African troops to inflict terror in this way as a matter of course.

When the Nationalists won and formed their government they were recognised by Western nations. Spain was a member country of the EU. On the back of raping girls to death to break the will of the opposing forces.

So no, I don't find it at all surprising that, just as there were plenty of Western politicians that were happy to cosy up to a brutal regime that displaced a democratic government on the back well-documented atrocities, that today their spiritual successors would be happy to cosy up to campaign donors at the expense of rape victims.
posted by rodgerd at 1:56 PM on October 20, 2009 [1 favorite]

Is this not the very definition of "separate but equal?"

I don't think that's the problem here. Nobody, not even advocates of the arbitration system, has suggested that it's an equivalent system to litigation. It exists as an alternative. The problems come up when it's not an alternative and when one party buys the arbitration as a service.
posted by weston at 11:50 AM on October 21, 2009

Spain was a member country of the EU.

Derailing, but whoa whoa whoa. Spain (with Portugal) was not admitted to the Common Market until 1986, having applied in 1977. It was not even a member of the "other Common Market", the European Free Trade Association, although Portugal was. Though they were certainly counted on the Western side in Cold War terms, they were only allowed into NATO in 1982. Although Spain was not a pariah state by any means, they definitely paid a price for eschewing democracy. (They had also paid a price for wartime neutrality, only overcoming a US objection to UN membership in 1955.)

Also, rape in war is hardly a unique damning (pace current thread). Alas.
posted by dhartung at 1:22 PM on October 21, 2009

Sen. John Thune (R-SD) Offers Weak And Hypocritical Argument For Voting Against Franken’s Anti-Rape Amendment.
posted by ericb at 2:30 PM on October 21, 2009

Well, I'm convinced. Get a rope.
posted by Pope Guilty at 2:37 PM on October 21, 2009

jock@law: Keep in mind that not all defense contractors are Blackwater...

nor are they KBR [the corp in question here] nor Dyncorp [who ran a sex-slavery operation while they were functioning as the Bosnian state police force].

but history & my gut tell me that when you put a bunch of guys who couldn't cut it as cops or soldiers into situations where there's no legal sanction against violent crime, bad shit will happen.

of course, KBR [et al.] know that, too. that's why they insist on arbitration. it's cheaper than effectively screening new hires, or paying for better ones.
posted by lodurr at 7:26 AM on October 22, 2009 [1 favorite]

Senator Dan Inouye (D-HI) is "considering removing or altering" Franken's amendment after being lobbied by defense contractors who have been "storming [Inouye's] office".

Nice.
posted by Lulu's Pink Converse at 2:00 PM on October 22, 2009

More comments from Thune-SD, from the Rapid City Journal:

Thune doesn't think it was a misstep. He said the KBR incident was tragic, and anyone guilty of a criminal act against Jones should be "prosecuted to the full letter of the law." But he pointed out that Jones has since won the right to take the issue to court. And Thune contends that the Franken amendment was aimed at a larger goal of providing workers more opportunities to sue their employers.

"It casts a much wider net than the narrower issue of defense contracts," he said. "Trial lawyers are going to push to get more opportunities for litigation and basically ban arbitration in some of these contracts. My vote was based on that issue, not the particulars of her (Jones') situation, which are tragic and being heard in court."

posted by lauranesson at 10:01 PM on October 22, 2009

I've asked Bob Corker to justify his vote (I live in TN). I'll share his response.
posted by joannemerriam at 12:20 PM on October 19

Here is his response:

from: [e-mail]
to: (my email redacted for privacy)
date: Thu, Oct 29, 2009 at 10:07 AM
subject: Responding to your message
mailed-bycorker.senate.gov


Dear Ms. Merriam,

Thank you for taking the time to contact my office about Senator Franken's amendment to the FY2010 Defense Appropriations bill dealing with arbitration. Your input is important to me, and I appreciate the time you took to share your thoughts.

Senator Franken's amendment stemmed from a truly horrible crime committed against Jamie Leigh Jones, an employee of a company performing work in Iraq under a contract with the Defense Department. Please know, this amendment had no impact on law enforcement's ability to pursue criminal prosecution against anyone involved in committing these crimes, and dealt only with the agreements between employers and employees to resolve civil claims in arbitration rather than through litigation. What happened to Ms. Jones in this case is abhorrent and the culprits should be prosecuted to the fullest extent of the law.

Separate and apart then from any criminal prosecution, Ms. Jones filed several claims in court in a civil suit against the company. The company argued that Ms. Jones could not sue in court because the employee signed an arbitration agreement to bring any claims against her employer to arbitration instead of being tried in court. However, the court ruled in favor of Ms. Jones by nullifying the arbitration agreement as to her claims of (1) assault and battery, (2) intentional infliction of emotional distress arising out of the assault, (3) negligent hiring, retention, and supervision of employees involved in the assault, and (4) false imprisonment. The court therefore said that employers can not require that civil claims of sexual assault be resolved through arbitration and that employees like Ms. Jones retain the ability to sue in court.

The Franken amendment sought to codify this court ruling in favor of Ms. Jones by requiring that contractors with the Defense Department exclude those four claims from their employee contract arbitration agreements. However, this amendment went much further than the court ruling by also requiring the exclusion from arbitration agreements of many of the possible employment claims an employee can bring against an employer. First, it is important to note that the Obama Administration opposed the Franken amendment because of its broad application and the problems associated with enforcing it. Rather than a targeted attempt to prevent the types of obstacles that Ms. Jones faced when she fairly sought restitution for the horrific acts that occurred, this amendment went well beyond in an effort to make a sweeping change to existing law among issues that never impacted this employee and that the court never addressed in this case.

I agreed with the court ruling and believe that the civil claims arising out of the sexual assault should not be arbitrated. However, I believe the amendment was too expansive, and went well beyond the situation the amendment was trying to remedy. I believe that arbitration can provide employees with a more efficient and cost-effective avenue for resolving their claims against their employer and I do not believe it should be largely eliminated as an alternative to what is sometimes a very lengthy, contentious, and expensive court process.

Thank you again for your letter. I hope you will continue to share your thoughts with me.


Sincerely,

Bob Corker
United States Senator

posted by joannemerriam at 10:53 AM on October 29, 2009 [1 favorite]

I gotta say, I can see Corker's point.
posted by five fresh fish at 11:59 AM on October 29, 2009

I can see Corker's point, too, but I'd rather err on the side of the employee for once.

I got absolutely no response from Senator "Haliburton" Cornyn.
posted by lysdexic at 2:17 PM on October 29, 2009

How does this bill err on the side of the employee? It turns out that signing arbitration papers doesn't actually give away your rights to take an issue to court. The system worked like it should.

A bill with balls would instead impose the corporate death penalty on KBR for its crimes against humanity.
posted by five fresh fish at 7:30 PM on October 29, 2009