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Aug. 2, 2021 by M. Isabelle Chaudry

To Protect Workers and Consumers, Congress Must End Forced Arbitration

In February, Georgia Rep. Hank Johnson, chair of the House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet, reintroduced the FAIR Act. The legislation would protect workers and consumers by eliminating restrictive "forced arbitration" clauses in employment and consumer contracts. The bill would also allow consumers and workers to agree to arbitration after a dispute occurs if doing so is in their best interests. A companion measure has been introduced in the Senate.

Arbitration — a process where third parties resolve legal disputes out of court — is a standard precondition to most, if not all, nonunion employment and consumer contracts. It's considered "forced" because few consumers and workers are aware that they are agreeing to mandatory arbitration when they sign contracts. In most contracts, arbitration is imposed on a take-it-or-leave-it basis before any dispute even occurs; refusing to sign is rarely a realistic option because other sellers and employers impose similar arbitration requirements.

Few consumers or workers are aware of these factors when signing a contract. When signing contracts, consumers and workers agree to adjudicate virtually all types of alleged violations of state and federal laws, including those that protect them against harmful and dangerous products, consumer fraud, employment discrimination …

April 26, 2021 by James Goodwin
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Making Congress functional again is having a moment. The debates over ending the filibuster and legislation to prevent hyper-partisan congressional districts have received the most attention in this space so far. But lawmakers did quietly take an important step forward on mending congressional dysfunction when they reinstated the practice of earmarking the federal budget, reversing a decade-old ban.

Lawmakers should build on this fix to the budget process by cracking down on “poison pill” appropriations riders, a gimmick that proliferated in the vacuum left by the earmark ban.

These riders are the inverse of earmarks, which direct federal agencies to spend a certain portion of funds on a specific activity (like building a bridge or community center, for example). Poison pill riders, on the other hand, bar agencies from using funds for certain activities. They don’t repeal agencies …

July 28, 2020 by James Goodwin
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Today, a group of 136 law professors from across the United States, including 31 Center for Progressive Reform (CPR) Member Scholars, will send a letter to congressional leaders urging them to “ensure that our courthouse doors remain open to all Americans for injuries they suffer from negligence during the COVID-19 pandemic.”

The letter, spearheaded by CPR Member Scholars Dan Farber and Michael Duff, comes in response to a push by the U.S. Chamber of Commerce and other corporate special interests to include a “federal liability shield” in the next COVID relief bill, which is now being negotiated in Congress. This shield would prevent ordinary Americans from holding corporations accountable in the civil courts when their unreasonably dangerous actions cause people to become sick with the virus.

As the letter explains, the federal liability shield would violate clear principles of federalism by intruding upon the traditional rights …

May 14, 2020 by Michael C. Duff
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Listening in on Tuesday's Senate Hearing on Corporate Liability During the Coronavirus Pandemic – you can find the video here and do a text search for "workers' compensation" – I was especially pleased to hear workers' compensation immunity discussed at 1:14:20 to about 1:14:50. Sen. Sheldon Whitehouse of Rhode Island specifically asked whether blanket corporate immunity would constitute subsidization of workers' compensation insurers. Witness Professor David Vladeck of Georgetown University Law Center responded that it very well could if workers' compensation were not carved out of the bill. I did not hear anyone contend during the hearing that workers' compensation could not be part of an immunity blanket, which is food for thought.

Coincidentally, I had been reading in The Atlantic as the Senate hearing was commencing an exceptionally good and sobering account of …

May 13, 2020 by Daniel Farber
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Originally published on Legal Planet. Reprinted with permission.

Sen. Mitch McConnell is demanding that any future coronavirus relief law provide a litigation shield for businesses, and other conservative and business interests have made similar proposals. So far, the supporters of these proposals have engaged in some dramatic handwaving but haven't begun to make a reasoned argument in support of a litigation shield.

In this post, I'm going to limit myself to negligence suits against businesses. Basically, these lawsuits claim the plaintiff got the virus due to the failure of a business to take reasonable safety precautions.

Even without a business shield, these are not going to be easy cases to win. Plaintiffs will have to show that they were exposed to the virus due to the defendant's business operation, that better precautions would have prevented the exposure, and that they weren't exposed elsewhere.

Tort lawyers may be …

May 7, 2020 by Daniel Farber
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Originally published on Legal Planet. Reprinted with permission.

If we get a vaccine against a national epidemic, could Congress pass a law requiring everyone to get vaccinated? That very question was asked during the Supreme Court argument in the 2012 constitutional challenge to Obamacare’s individual mandate. The lawyer challenging Obamacare said, “No, Congress couldn’t do that.”

What’s shocking is that this may have been the correct answer. Conservatives on the Supreme Court have curtailed Congress’s ability to legislate about anything other than economic transactions, and an epidemic is not an economic transaction.

The 2012 oral argument in the Supreme Court

JUSTICE BREYER: I’m just picking on something. I’d like to just — if it turned out there was some terrible epidemic sweeping the United States, and we couldn’t say that more than 40 or 50 percent . . . — you’d say the Federal …

Dec. 13, 2018 by James Goodwin
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Not long after their party regained control of the lower chamber in the midterm elections, House Democratic leaders unveiled their signature legislative action for the next Congress – a package of reform measures aimed at tackling some of the worst ethics abuses involving the Trump administration's top officials and members of Congress. Symbolically assigned the designation of H.R. 1 to underscore its status as the top legislative priority, the bill would do more than just restore the integrity of our key democratic institutions; it could also serve as a crucial first step toward strengthening our system of regulatory safeguards.

Though the actual language of H.R. 1 has not been released, the bill is expected to consist of three sections. First, it would introduce a number of ethics reforms aimed at high-ranking executive branch officials and members of Congress, including requiring presidential candidates to disclose their taxes …

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CPR HOMEPAGE
More on CPR's Work & Scholars.
Aug. 2, 2021

To Protect Workers and Consumers, Congress Must End Forced Arbitration

April 26, 2021

The Hill Op-ed: Now That Earmarks Are Back, It's Time to Ban 'Poison Pill' Riders

July 28, 2020

CPR Leads Legal Academics in Ensuring Citizen Access to Justice in the Wake of COVID-19

May 14, 2020

The Stimulus 'Liability' Debate: Don't Forget Texas Elective Workers' Compensation

May 13, 2020

Free to Be Negligent?

May 7, 2020

The Coronavirus and the Commerce Clause

Dec. 13, 2018

By Fixing Congress, the Planned H.R. 1 Could Strengthen Public Protections, Too