Talk about "activist judges." When people talk about activist judges, they are referring to judges who make law, rather than interpret law. They think only "liberal judges" make law. However most activist judges are big business conservatives many say.
For years, the law in this country would not allow people or corporations to enter into arbitration agreements until they had a dispute that needed resolving. In other words, the courts would not enforce pre-dispute contracts to arbitrate. The courts thought the dispute should be known before constitutional rights could be waived. Once people knew there was a dispute that needed settling, they could chose to go to arbitration instead of going to court. Generally only big businesses and contractors used the arbitration process. Big corporations were much more successful in front of arbitrators they hired. Big business learned that if they could lure people to arbitration it was a win -- win for them. Traditionally, the courts would not enforce arbitration agreements unless the dispute was known and those involved knowingly chose to arbitrate, giving up their rights to a jury trial and ever going to court.
How could big business get around the law or get it changed? If they could entice people to sign an arbitration agreement before the people knew there was a dispute and somehow get the courts to enforce the arbitration scheme, they would have it made. They thought it would be even easier if they could trap people into arbitration without them knowing it. "We could keep the consumer from suing us no matter what -- buying a bad car, charging something on a credit card that shouldn't have been charged, and even taking money out of their bank account that we shouldn't have taken. We could even deny them their Constitutional right to trial by jury and fix it so they cannot appeal what our arbitrator says."
We know that cannot happen in America -- can it? The courts would never go along with Americans being denied their right to go to court and justice - would they? The Founders put the right to trial by jury in the very first 10 Amendments, along with freedom to bear arms, freedom of speech, and freedom of religion. These are fundamental rights of every American, right? They cannot trick us into signing a contract that is against the law. For a contract to be enforceable, both parties have to know what they are doing, agree to it, and exchange something of value--just like buying a candy bar, a car, or even a house.
Believe it or not, it has happened! With money, power, and influence the special interests have managed to avoid being sued in court for the wrongs they do. "You can't sue us and take us to court," they say,"but if you have enough money, you can go before our arbitrators; of course, you have to pay, you are bound by what they say. No court for you, no jury of your peers, no right to appeal! You take what the arbitrator gives you, ha! If anything."
Credit card companies can now legally bury the "so called agreement" in a long document of fine print; send it in the mail, and if you use your credit card again, the courts will say you agreed to arbitration. Even though you had no idea or knowledge that would be the result. Your bank can bury the "so called agreement" in a long deposit agreement of fine print and the Supreme Court will say you entered a contract to arbitrate if you use your bank account again in any way. Big Business is rewarded with a "get out of jail free card." "What" you say, "that can't be true!" Well it is true! It is time to wake up and stop supporting those who are stripping our constitutional rights. Talk about courts and big business and big government controlling you, manipulating you, and leaving you with what the bird left on the pump handle (to use a phrase of the south), -- it has happened!
Even when Congress passes a law clearly requiring credit repair organizations to inform you of your "right to sue" for violations of the law, the U.S. Supreme court held 8-1 that Congress did not rule out arbitration for settling CROA (Credit Repair Organizations Act) violations despite the Act's provision, that said, the company must tell customers they had a right to sue. Guess Congress was just kidding.
In the U.S. Supreme Court's recent decision in CompuCredit Corp. v. Greenwood, the Court held that victims of predatory credit repair organizations who unwittingly and unknowingly sign credit card agreements containing pre dispute mandatory arbitration clauses cannot go to court, but must go to binding arbitration. (CompuCredit Corp. v. Greenwood, No. 10-948 (Jan. 10, 2012).)
It is hard to believe that when Congress says, "right to sue," the Court would say that means, "right to arbitrate," not "right to sue." Justice Antonin Scalia wrote for the majority, concluding even though the Act says "right to sue" the law "is silent" on where you could sue, (don't you sue in court?), so since the Federal Arbitration Act (FAA) requires the enforcement of arbitration agreements, you must go to binding arbitration. So there!
"The Federal Arbitration Act does not work for consumers and employees," said Gary Paul, president of American Association for Justice. "It is time for Congress to pass the Arbitration Fairness Act to protect consumers and employees from these abusive practices."
Gregory S. Cusimano