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stebbinsd

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  1. So basically ... you're both arguing that arbitrations are just as expensive and time consuming as courts are? In that case, what even is the whole point of arbitration in the first place? The whole point of arbitration is that it's supposed to be cheaper and faster than litigation. But if you argue that this isn't actually the case, then arbitration doesn't appear to serve any legitimate purpose whatsoever. If there is no financial incentive to arbitrate because it costs the litigants the same amount as litigation, then the only thing arbitration does is strip indigent citizens of their constitutional due process rights and provide nothing of value in return.
  2. Also ... I did not suggest that solution. Re-read my OP. I said we could solve this problem simply by requiring arbitrations to be state-owned and financed, with state-mandated monopolies on arbitration services. Stop putting words in my mouth.
  3. So how exactly should the problem be fixed? Bear in mind that sometimes "throwing the baby out with the bath water" is indeed the only solution. For example, the SUpreme Court threw the baby out with the bath water in 1954 when they realized that southern states were not keeping their promise of racial segregation being separate but equal. They didn't simply issue an injunction ordering the schools to be equalized (in terms of funding, maintenance, quality of staff being hired, etc.); because the states weren't keeping their promise of it being equal, they simply banned all segregation, period, even if the states could make them equal. A similar problem happened when a constitutional amendment banned literacy tests as a condition for voting. I can honestly see a few ways in which literacy tests can serve legitimate purposes. It's obvious why some people would want those who have a say in the government to have a certain minimum IQ, so a literacy test is a quick, easy, and inexpensive means of ensuring that. But historically, southern states have not used literacy tests for that purpose. So instead of forcing them to stop using literacy tests for racist agendas, Congress simply banned all literacy tests across the board. Granted, that was Congress rather than the Supreme Court, but still: They "threw the baby out with the bath water" in order to achieve a result they felt was more important. The bottom line is, if "throwing the baby out with the bath water" is the only way to prevent an abuse, then that has historically been seen as a small price to pay, especially when it comes to something as optional as arbitration. By banning arbitration, nobody's inherent rights are being violated, so if that's the only way to prevent arbitrators from violating someone else's fundamental rights, well ... if that's what it takes, then that's what it takes. So unless you can come up with a better plan to deal with this problem, that may be what we have to do.
  4. Yes, and private arbitrators benefit financially from big businesses agreeing to use them, which in turn entices arbitrators to give rulings that are favorable to big businesses. This is not rocket science.
  5. How about Tumey v. Ohio, 273 US 510 (1927), overturning a judgment just when the arbiter had even a potential financial interest in the outcome of the case, even when there was no direct evidence that this financial interest had any effect whatsoever on the outcome. The Supreme Court in that case made it clear that the constitutional right to an impartial tribunal is an absolute right and cannot be taken from a citizen for absolutely any reason, no matter what.
  6. Uuuuh ... yes they do! https://www.adr.org/sites/default/files/Consumer Rules.pdf Page 1: "CONSUMER ARBITRATION RULES" The key word, there, however, is "used correctly." If big businesses can simply take their dispute resolution business elsewhere whenever they aren't getting results that please them, then the arbitration firms have a clear financial conflict of interest. You have to evaluate the AAA independently from NAF? Well, unless AAA is completely financially independent of big businesses and doesn't stand to lose even one dime if big businesses suddenly decide to stop using them, then there's a financial conflict of interest. It's as simple as that. Even if they "operate" differently than the NAF, even the slightest financial conflict of interest is grounds to vacate the award. A financial stake in getting the big businesses to come back to you is a financial conflict of interest, period. No amount of "operating differently" is going to change that. I don't see what is so confusing about this. A conflict of interest is a conflict of interest.
  7. https://www.califcreditlaw.com/2008/04/national-arbitration-forum-sued-san-francisco-city-attorney/ That was in 2008. Here we are, a decade later, and the only thing that seems to have changed is that the big businesses have switched in droves to the American Arbitration Association, rather than NAF. There is no indication that the AAA has any less of a conflict of interests. So couldn't the AAA - and by proxy, all private arbitration firms - be similarly "blackballed" because they habitually violate 9 USC § 10(a)(2)?
  8. Yes, but the FAA also explicitly has a provision saying that an arbitration award can be vacated if there is evident partiality from the arbitrator. The question is ... couldn't this be established by default if the arbitration firm has a financial conflict of interest enticing it to side with big businesses?
  9. Due process. Specifically, the right to an impartial and disinterested tribunal.
  10. Is there any solid precedent on this issue, one way or another? I wonder if private arbitration, by its very definition, may be unconstitutional. Bear in mind that arbitration awards can be set aside if a court of competent jurisdiction is satisfied that the arbitrator was biased against me. See 9 USC §10(a)(2). The National Arbitration Forum is now forever precluded from hearing any cases of consumer law because courts have caught wind of the fact that NAF was inherently biased in favor of businesses. Arbitration awards are now automatically vacated by most courts, simply because NAF issued them, and that alone is enough evidence of arbitrator bias. Bear in mind that the American Arbitration Association has an inherent conflict of interest in consumer law. In fact, they have the same conflict of interest that ultimately lead to NAF being “blacklisted,” for lack of a better term. Agreements to Arbitrate will specify which arbitration firm is used. It would, quite obviously, be in the arbitration firm's best interests to issue awards in favor of the party who controls the contractual arrangement (in 99.99999% of cases involving consumer law, that will be the business), lest those parties re-write their contracts in order to take their “dispute resolution” business elsewhere. Unlike courts of law, arbitration firms – even non-profit ones like AAA – rely on continued patronage to keep their lights on. Even if they do not turn a profit, per se, they still need to cover their overhead costs. This is in stark contrast to courts of law, which are 100% state-owned and state-funded. They charge filing fees, but only to cover the actual costs of receiving new cases, costs they would not have incurred if the lawsuits were never filed to begin with. The costs they incur regardless of case load (such as flat annual salaries for their officers and the costs of electricity and water for the courthouse itself) are provided by appropriations from Congress and the state legislatures. They do not rely on people continuing to file lawsuits with them to avoid bankruptcy, nor do parties have the option of simply taking their “dispute resolution” business elsewhere, since courts have strict laws government which courts have jurisdiction over a dispute. Even private prisons have been shown to actively manipulate criminal law to increase demand for their services regardless of what is best for public safety (see https://represent.us/action/private-prisons-1/ ). But even they do not have a financial conflict of interest that is nearly as direct as that of arbitration firms. If you take out the financial conflict of interest, arbitration is not really all that different - as far as procedure is concerned - from most states' small claims courts. Whenever your case qualifies for such a court, that forum is actually highly sought after. But then again, it also has the aforementioned taxpayer-funded independence from big businesses. Because of this clear financial conflict of interest, I have grave doubts as to whether private arbitration firms period may even be constitutional under the 14th Amendment. Just as the NAF has been blacklisted because of its track record, I wonder if arbitration firms as a whole might become disallowed unless they become 100% owned, funded, and controlled by the state, kind of like a small claims court with much wider jurisdiction and no damages caps. Is there any solid precedent on this issue, one way or another? Because I was unable to find any.
  11. To be protected by the ADA, a person must be "otherwise qualified" to receive a particular service. If a person is not otherwise qualified, he is not protected by the ADA in the first instance, and therefore, employers, government entities, and places of public accommodation can discriminate against that person to their heart's content. In regards to court access, a person is presumed "otherwise qualified" solely on account of him being a U.S. citizen. However, that's the thing about presumptions: They can be overcome with evidence. Sometimes, a person may be declared "incompetent to stand trial" by a psychiatric evaluation. While this is wonderful news for a defendant in criminal court looking to have his charges dismissed, I wonder if it may be a kiss of death for that same person in literally any other circumstance. If that same person seeks court access in the future (this time, on his own accord), could the court use the fact that he was declared "incompetent to stand trial" in a criminal case, at which point, they are allowed to discriminate against him and deny him access to the courts because of his disability, without violating the ADA. I wonder if this has actually been attempted before.
  12. 1. Civil or criminal, the fact is that a cop's authority to use lethal force under the constitution was clearly defined. NO law is allowed to violate the constitution. 2. It declared the law unconstitutional. You asked for that and then asked for strict scrutiny if I couldn't find one that clearly stated it was unconstitutional. 3. No, I said that police were depriving citizens of their lives without due process of law. As I said in my second post in this thread, self-defense requires a buttload more evidence than just the possibility that a person could be in possession of a weapon, without any regard to actual weapons use.
  13. He asked for a case law that declared police use of excessive for is unconstitutional: Your point? It was still declared unconstitutional. At that point, does it really matter what level of scrutiny was used? Neither do laws regarding police use of force. Those laws are usually classified as different in the statute books than self-defense for private citizens. In California, for example, police use of force is clearly listed in a separate section of the penal code than private self-defense: http://codes.findlaw.com/ca/penal-code/pen-sect-835a.html So the argument of self-defense carries no weight here.
  14. How about Graham v. Connor, 490 US 386 (1989). Although that case says that the circumstances must be viewed from the officer's perspective, it nevertheless requires an objective look at the circumstances, with no regard to the cops' subjective mindset. Indeed, in that case, the high court thoroughly rejected the opposing party's claims that the cop's subjective mindset be even a little bit of a factor. See id at 397-399. The things SCOTUS instructs lower courts to look at when deciding whether the force was excessive are "the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." The cases mentioned in my OP had the cops opening fire on civilians because ... they believed he had a weapon. Weapon = threat, as far as those officers were concerned. Not that he was actually doing anything with the weapon. Just the fact that he had the weapon ... which was their 2nd Amendment right. Philip Braisford & Charles Langley were responding to a call that someone was waiving a rifle around in a window; no reports of gunshots were ever made. Meanwhile, Stephon Clark was believed at the time to merely have a gun in his hand, not that he was actually pointing it at the cops! That one factor, by itself, without more, objectively satisfies precisely ZERO of the SCOTUS-mandated factors. An objective test is required, and therefore, the cops' personal paranoia about the danger they were in carries no more weight than their malicious or sadistic mindset that SCOTUS debunked in pages 397-99 of that published opinion. You want existing case law? There's one right there!
  15. You want a case law citation saying that the right to not be deprived of life without due process of law is a fundamental right? Or do you want a case law citation saying that laws that infringe upon a person's fundamental right must pass strict scrutiny in order to be constitutional? I can provide either one if you like.
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