SCOTUS and the Mandatory Arbitration Revolution: Part 2/7 (Historical Context)

A Brief History of (American) Arbitration

European Roots and Colonial Growth

Legal scholar Lauren G. Barnes points out that arbitration initially developed among members of the merchant class during the medieval period in Europe. Arbitration then took place almost solely among members of the merchant class. Considering that merchants were often traveling between fairs, in different towns and regions no less, in order to conduct business affairs with one another, they needed an efficient way to resolve disputes that arose from their recurring economic transactions. This dispute resolution process needed to do its job quickly and “in accordance with customary norms that merchants respected.”1 As a result, an adversarial court system in which the business relationship between the two parties could be severely, even permanently, damaged would not suffice for this purpose. Rather, a non-legal, yet still judiciously warranted system would be preferable.

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SCOTUS and the Mandatory Arbitration Revolution: Part 1/7 (Intro)

Though we may not be entirely aware of it, a tremendous amount of our economic and financial transactions as consumers and/or employees, especially with regard to any disputes about those goods/services/employment, cannot be litigated in a court of law if we have willingly signed their contracts and agreed to the terms/conditions.1 This legal inability has been created by the passage and continued enforcement of the Federal Arbitration Act (FAA) of 1925. Since its inception, many potential disputes involving those aforementioned transactions and relationships have been governed by mandatory arbitration.2

So just how widespread is mandatory arbitration? Legal scholar Jeremy Senderowicz remarks that mandatory arbitration clauses (MACs) and class action bans (CABs), along with their variations, are now standardly included in “banking, insurance, health care, and communication service contracts, as well as arrangements for the sale or lease of consumer goods.”3 Another scholar adds to that same list contracts involving “housing, national parks, patents, disaster relief, and telecommunications.”4 Yet MACs/CABs are not only applicable to consumers. Once we involve the number of businesses who use MACs/CABs to regulate relationships with their own employees, that nearly ubiquitous reach grows much more. For instance, one published academic study from 2008 asserts that during the year “a quarter or more of all non-union employees in the US,” more than 30 million employees, had agreed to mandatory arbitration in some form or another.5 Given that the use of mandatory arbitration has been increasing steadily over time, it is safe to say that this number of employees directly affected by MACs/CABs in 2018 is even higher.6

Yet, this ubiquity is not the only reason that the prevalence of MACs/CABs is remarkable. What’s more is that most of the fundamental changes that have occurred within the realm of arbitration and its relationship with the Federal Arbitration Act (FAA)7 have taken place only over the past 30 or so years. From about 1980 until 2015, there were 25 Supreme Court cases that involved arbitration, all of which expanded the scope and degree of the FAA’s jurisdiction and which have, collectively, enforced the use of MACs/CABs in various circumstances.

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Some Closing Thoughts on Moral Complexity – Part 5 of 5

     Recall that my intention from the beginning was to construct a basic outline of the Dalai Lama, Andre Comte-Sponville, and Viktor Frankl’s moral systems based on excerpts of their respective works. Following the outline, I sought to point out some general objections to each moral system and analyze each one based on how well it can handle moral complexity.

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Moral Complexity and Viktor Frankl’s ‘Logotherapy’ – Part 4 of 5

This is the fourth part of a five-part essay comparing and contrasting the moral systems of the Dalai Lama, Andre Comte-Sponville, and Viktor Frankl with regard to how well (or poorly) their respective moral systems fare against morally complex situations.


Viktor Frankl’s Moral System (based on Logotherapy)

            As far as the deontological/consequentialist debate goes, Frankl’s moral system seems to straddle the middle. Frankl’s moral system is derived from aspects of his logotherapy, a specific school of thought within modern psychiatry. Frankl believes that logotherapy is a useful tool in that “the patient is actually confronted with and reoriented toward the meaning of his[/her/their] life” (104). This meaning is the primary drive motivating conscious human beings; it is future-oriented (towards some potentiality that is, as of yet, left undone), extremely subjective (as it changes from one individual to the next), and dependent upon the responsible care and efforts of the individual for its realization.

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Moral Complexity and Andre Comte-Sponville’s ‘Spiritual Atheism’ – Part 3 of 5

This is the third part of a five-part essay comparing and contrasting the moral systems of the Dalai Lama, Andre Comte-Sponville, and Viktor Frankl with regard to how well (or poorly) their respective moral systems fare against morally complex situations.


Andre Comte-Sponville’s Moral System (based on Spiritual Atheism)

     Comte-Sponville’s moral system, in contrast to the Dalai Lama’s is more consequentialist than deontological. His moral system is more concerned with states of affairs and consequences that affect them than purely motivation/intention. Take, for instance, the fact that he decries certain moral actions such as “rob[bery], rape, and murder” (42). He does this, presumably, because of the immensely harmful consequences that each one brings about. Robbery can shatter a person’s sense of security within their own home or environment. Rape forcefully objectifies a person’s existence, conflating the meaning of their life with the desirability of their physical traits. Murder almost inherently involves pain and suffering, not to mention its permanent duration. As a result, Comte-Sponville’s moral system is more consequentialist than deontological.

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Moral Complexity and the Dalai Lama’s Tibetan Buddhism – Part 2 of 5

This is the second part of a five-part essay comparing and contrasting the moral systems of the Dalai Lama, Andre Comte-Sponville, and Viktor Frankl with regard to how well (or poorly) their respective moral systems fare against morally complex situations.


The Dalai Lama’s Moral System (based on Tibetan Buddhism)

We can categorize the Dalai Lama’s moral system as one that is deontological in nature. Deontological ethics, recall, has two key interpretations. One interpretation defines deontological ethics as a method that helps us to understand what is morally required, forbidden, and permissible in a particular situation or event. Morally required actions, insofar as they are completed, are morally good; these are often referred to as obligations or duties. Morally forbidden actions, however, ought to be avoided and are morally bad. Morally permissible actions, then, are neither morally good nor morally bad; they are either morally void or morally neutral actions.

A second interpretation defines deontological ethics as a method that focuses on whether or not specific and explicit moral rules or principles were followed in completing a particular action or set of actions. Deontological ethics then uses these specific and explicit moral rules and principles to determine the moral worth of an action or set of actions (henceforth referred to as ‘set’). If the specific moral rule or principle is observed during the action or ‘set,’ then the action or ‘set’ can be said to be morally good. If the specific moral rule or principle is not observed during the action or ‘set,’ however, then the action or ‘set’ is morally bad.

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Making the Acquaintance of Moral Complexity – Part 1 of 5

This is the first part of a five-part essay comparing and contrasting the moral systems of the Dalai Lama, Andre Comte-Sponville, and Viktor Frankl with regard to how well (or poorly) their respective moral systems fare against morally complex situations.


     Moral complexity is both a fact of reality and an obstacle that persistently bedevils the formation and function of our moral systems. By moral systems, I mean the totality of methods, assumptions, principles, rules, and obligations that are meant to guide, regulate, and formalize our interactions with other living beings as well as with our environments. Moral systems come in a variety of different forms and can be either secular (natural, material) or sacred (religious, supernatural) in composition. They also have varying degrees or levels of comprehensiveness in content and scope. That is to say, some are more developed or nuanced than others. Examples of some moral systems include Divine Command Theory, the Golden Rule, Utilitarianism, Virtue Ethics, the 10 Nonvirtues of Tibetan Buddhism, and so on.

     Given that at least one purpose of moral systems is to guide, regulate, and formalize our interactions with other living beings as well as with our environments, we can assess the worth and utility of a moral system insofar as it is relatively more adept at handling complex moral situations than its competitors.

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Classical Views on Free Will

Capture

Hard Determinism

In his work “The Delusion of Free Will”, Robert Blatchford argues that human free will is a delusion; all of our desires come from within (heredity/temperament) or from without (environment/training). Blatchford claims that even though we think we choose freely, we do not. When we are faced with different choices, our choice is selected by either our heredity, such as our personal preference of sweet over sour, or our environment, such as why it is acceptable to be individualistic as opposed to collective in terms of attitude. The heredity factor is influenced by our genetic makeup; the environment factor is influenced by the culture and society in which we live. Blatchford states that whichever one of these two forces is stronger, in a given situation, it will make our decisions for us.

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A Summary (of the first portion) of “Frontiers of Justice” by M. Nussbaum

     Martha Nussbaum sets out in “Frontiers of Justice” to challenge the Social Contract tradition, the current paradigm in political philosophy insofar as it relates to theories of justice, by defending her own approach which she refers to as the “capabilities approach.” She begins by describing the historical development of the Social Contract tradition, focusing on certain writings of philosophers such as Hobbes, Locke, Hume, Kant, and most recently, John Rawls.

After briefly describing how the Social Contract tradition has come to exist in its contemporary form following the influences of John Rawls, Nussbaum levels some very strong criticisms against this philosophical tradition. In particular Nussbaum focuses on how proponents of the Social Contract tradition have (not) responded to the needs and interests of disabled individuals, the global community/nationality, and non-human species.

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Contra Ainslie: Multi-variable Measures of Akrasia

Throughout his explanation of akrasia as hyperbolic discounting, Ainslie focuses on the temporal dimensions of the discounting process, noting that when the possibility of experiencing satisfaction from a particular reward is less delayed, then the agent is more likely to engage in akratic actions or be swayed by akratic behavioral dispositions.

Ainslie uses the term “imminent” to describe how strongly an agent may feel an internal pull towards a particular reward and its accompanying satisfaction (Ainslie 30). “Imminent,” when properly understood within hyperbolic discounting, includes but should not be limited to temporal considerations. Akratic actions involve internal calculations guided by desire or emotion with an emphasis on, or at least a preference for, the likelihood of certainty in obtaining satisfaction from a reward. This aspect of certainty is what some psychological experiments mentioned by Ainslie fail to properly take into account.

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