The Supreme Court has handed big business a Get Out of Jail Free card, CCL lawyer John Vail today told the national convention of the Federalist Society, describing rulings under the Federal Arbitration Act that effectively shield large corporations from liability to consumers and employees.

Part of a panel on “The Roberts Court and Litigation Against Big Business:  Too Much, Too Little, or Just Right?” Vail provided an opposing view to panelists who claimed the Court is neutral in its business rulings.

Detailing the history and purpose of the Act, Vail demonstrated how the Court has created law that his little to do with the statute Congress wrote in 1923.  Vail noted that even former Justice Sandra Day O’Connor had found “the Court has abandoned all pretense of ascertaining congressional intent with respect to the Federal Arbitration Act, building instead, case by case, an edifice of its own creation.” 

Vail cited a recent decision by Justice Scalia, which quoted an earlier decision but left out a key word at the end of the quoted sentence.  “The original intent of the Act,” said Vail, “was to make the remedy of specific enforcement available for breaches of arbitration agreements.”  By selective quotation, Vail asserted, Justice Scalia had judicially created a national policy in favor of arbitration, something Congress never intended.