Mr. SESSIONS. Mr. President, I would like to speak about the Franken amendment if it is OK with the bill managers.
The amendment would impose the will of Congress on private individuals and companies in a retroactive fashion, in validating employment contracts without due process of law. It is a political amendment, really at bottom, representing sort of a political attack directed at Halliburton, which is politically a matter of sensitivity.
Notwithstanding, the Congress should not be involved in writing or rewriting private contracts. That is just not how we should handle matters in the Senate, certainly without a lot of thought and care, and without the support or at least the opinion of the Department of Defense.
Senator Franken offered this amendment because he apparently does not like the fact there are arbitration agreements in employment contracts. I would suggest that is common all over America today.
The Supreme Court of the United States has already resolved that arbitration agreements contained in employment contracts are not only valid but in most instances beneficial. In most instances, arbitration is considered to be beneficial. In fact, employees tend to win more arbitration disputes than they do lawsuits in court. So I think that is a matter we should consider.
This is what Justice Kennedy on the Supreme Court wrote in Adams v. Circuit City:
Arbitration agreements allow parties to avoid the cost of litigation, a benefit that may be of particular importance in employment litigation, which often involves smaller sums of money than disputes concerning commercial contracts.
So I believe that instead of eliminating arbitration, we should probably be looking for ways to utilize mediation and arbitration more in these kinds of disputes.
Indeed, in a recent JAMS article published in June of 2009, entitled ``Arbitrators Less Prone to Grant Dispositive Motions Than Courts,'' the author made the following points:
[A]rbitrators are generally much more reluctant than courts to grant dispositive motions--
That is, to wipe out a lawsuit altogether--
whether they are motions to dismiss a complaint or arbitration demand, or motions for summary judgment. Indeed, the rules of most major arbitration providers are silent about whether an arbitrator may entertain dispositive motions.
It goes on to say:
While courts have held that arbitrators have the inherent power to grant dispositive motions, the lack of explicit rules on the issue reflects the hesitance that most arbitrators feel in granting dispositive motions without a fact hearing.
It goes on to say:
There are at least three institutional reasons, which also highlight some of the advantages of arbitration:
The article says:
First, while every litigant is entitled to appeal the grant of a dispositive motion in federal or state court, a final decision in arbitration is subject to far less review. Moreover, appellant court review of such a grant is de novo, with the allegations or evidence, as the case may be, read in the light most favorable to the plaintiff. In addition, to the extent that the trial court has interpreted the law, the reviewing court is free to interpret and apply the law differently.
Basically, they are saying a person who has filed a complaint about their employment termination or agreement has a better shake of getting to court and having their matter heard than if they had filed a lawsuit because the strict rules of summary judgment often toss a lot of these lawsuits at an early stage.
It goes on to say:
The second difference between courts and arbitrators that explains why courts are more likely to grant motions to dismiss [an employee's lawsuit] is a differing level of concern about discovery. In the U.S. Supreme Court's recent decision in Twombly, for instance, ``the Court placed heavy emphasis on the `sprawling, costly, and hugely time-consuming' discovery that would ensue in permitting a bare allegation of an antitrust conspiracy to survive a motion to dismiss, and expressed concern that such discovery'' will push cost-conscious defendants [Page: S10147] to settle even anemic cases. Discovery is much more limited in arbitrations and, thus, a denial of a motion to dismiss is less likely to result in such extensive discovery.
Finally, some commentators and judges have noted that the pressure of the increasing caseload that federal and state courts have seen over the last two decades makes the courts more tempted to dispose of cases on a motion, instead of after a trial on the merits. ..... [arbitrators have] reacted in precisely the opposite way--by constricting, not expanding, the use of dispositive motions.
In effect, allowing more cases to be fully heard.
There is no doubt that contracts are a property right. We do not have any allegations that the contracts Senator Franken is trying to invalidate were imposed on employees or that fraud or coercion was involved in creating them.
To invalidate these contracts would violate not only the due process rights of employers but the employees as well. Employees could, indeed, benefit from arbitration rather than having to go to Federal court.
The Congress is in no position to determine whether an employee negotiated for additional compensation in exchange for signing an arbitration agreement----
