Introduction: Alexa Windsor and Her Expertise
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Speaker
Hello, and welcome to the Interactions podcast. For those that are new here, Interactions is produced by the Center for the Study of Law and Religion at Emory University. Here, we explore the intersection of law and religion and their impact on the world around us. My name is Orvi, and I'm part of the digital scholarship team here at the Center.
00:00:29
Speaker
Hi, my name is Sierra. Today you're tuning into the second episode of our newest interaction season, which highlights recent works in law and religion. In this episode, we're excited to welcome Alexa Windsor, a legal scholar and educator whose work focuses on the intersections of law and religion, contract law, and arbitration, especially in relation to gender and sexuality.
Adapting Contract Law for Inclusivity
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Alexa Windsor is currently completing her SJD at Emory University School of Law. She has dedicated her research to exploring how contract law principles can be adapted for alternative dispute resolution in faith-based communities and for LGBTQ individuals.
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Her work brings fresh perspectives on religious freedom and inclusivity within legal frameworks. In this episode, we'll discuss Alexa's motivation to research these areas, her insights on the role of contract law in resolving conflicts with diverse communities, and her vision for inclusive legal practices. Thank you for joining us on this episode of Interactions Podcast. And keep an eye out for our future episodes where we talk with other scholars in law and religion, including Ariel Lieberman and Mark Storsley.
Meet the Hosts: Whitney Barth & John Bernaugh
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Speaker
Hello, I'm Whitney Barth, and I'm the executive director of the Center for the Study of Law and Religion at Emory and the Charlotte McDaniel Scholar. Our center explores the intersections of law and religion through research and scholarship, teaching and training, and public programs. And I'm joined this morning by my colleague, John Bernal.
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Speaker
Hello, my name is John Bernaugh. I'm a sociologist working at the Center for the Study of Law and Religion at Emory University and the Director of Digital Scholarship. Today we're speaking with Alexa Windsor, an SJD student at Emory Law. Alexa, welcome to the podcast. Hi, thank you, John. Thank you, Whitney. It's lovely to be here with you all.
Addressing Queer Legal Conflicts
00:02:21
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To start, maybe you could tell us about your project. um Why is it unique and what problem are you trying to solve?
00:02:29
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Yeah, so I'm operating kind of at the intersection between law and religion and queer rights. So um as you can see by the news today that there is a very relevant problem here to solve. and There's a lot of conflict happening, especially in the legal sphere.
00:02:45
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And my dissertation proposes arbitration for the queer community to solve inter-communal disputes to kind of pull them out of the public eye and have a community-building function of arbitration. um We see this similarly in the Jewish community and the Islamic community. We're starting to see movements in the Sheikh community and Great Britain, specifically in creating their own kind of arbitration tribunals. And I think queer community can do the same.
00:03:14
Speaker
That's really interesting. um And one of the things that you've identified are as the current kind of model, as the constitutional rights allocation model. Can you tell us about that? What are some of the limitations
Limitations of Current US Legal Models
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of that? First, what is that model and what are the limitations of that model? So right now, when folks dispute, when they have conflict and they go into a United States court to litigate that conflict,
00:03:36
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You tap into two main issues. One, you're stuck using common law, and two, you're stuck using Constitution. So with Constitution, the issues there are that it's rights allocation. It's not actually resolving a problem between people. It's who owns what right.
00:03:52
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And a lot of times that's determined by who has enough money to keep litigating, unfortunately. It's also we see that ris rights shape the holders of those rights. So I lean a lot into Katherine Frankie's work and the book Wedlocked, talking about how once we had the right for marriage for same-sex couples, we saw that other rights that we had for alternatives to marriage were cut off. We're just no longer accessible to the queer community. That's very similar to what happened to African Americans right after the Civil War, where we kind of foisted marriage upon them as a social control factor whether or not they wanted to be married or thought they were married at all in the first place. And it kind of cut off any other avenue of building or shaping a family.
00:04:35
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So you kind of get stuck in that being shaped by the right you're given. And then finally, the point of the Constitution is tolerance, which is really, really fragile. Considering, you know, after 9-11 and Islam, um the stance towards Islam pre-9-11 was not as hostile as it was right after 9-11. We had some form of tolerance in the 90s, but that went right out the window as soon as something happened. It was very fragile.
00:05:01
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um We also see with the common law issues. um Unfortunately, common law means that you have to assimilate and shape yourself to a very specific legal subject, one that you can trace back historically. Well, who are the historical legal subjects? White, land-owning males.
00:05:18
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um So you have to trace yourself to that. Also, common law, because it's binary and because it's adversarial, is necessarily paranoid. You enter into any conflict with the worst possible assumptions of the other side. That's what lawyers are really good at. We're really good at the paranoia.
00:05:33
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And we see that language get filtered into the political discussions from the legal cases about these issues. And finally, common law is just very backwards looking. It doesn't kind of imagine what future possibilities could be. It's just trying to shape current problems to look like past problems.
00:05:50
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And so when you have queer conflicts and you're put into this constitutional rights allocation model, you're just reinforcing a lot of these harms that have happened to the queer community and minority communities in the past by making us shape ourselves to fit people we're not and to fit a legal paradigm that we weren't involved in.
Queer as Praxis: A New Model
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interesting. I wonder, um Alexa, if you could tell us a bit more about the Queer as Praxis model, which I understand is the heart of your answer to the problems that you've identified. Yeah. So thank you for asking. um Queers practice, kind of before I even get there, I have to explain that there is a difference in my definition between being LGBT and being queer. um You can see a lot of members of the LGBT community who want to be accepted as heteronormative in society. They want to be just like everybody else. They want marriage. They can just be like the heterosexual couples and get divorced just like everybody else.
00:06:49
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Yeah, that sort of narrative. It's wanting to be very normalized. You have many folks who, when they transition, they then say to their partners, like, you're now heterosexual, who were previously a queer couple, because they want that heteronormativity, as opposed to embracing the difference and the alternative lifestyle of queerness.
00:07:09
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So one of the first things I really do in my dissertation is expand queer to conclude non-normative others, people who don't necessarily fit that strict legal paradigm, that legal subject that we see in American common law. And by linking that queers practice model to this queer identity, I can then use queer theory to make actual legitimate changes to the lives of these non-normative others in ways that follow traditional queer theory principles, so things like oppositionality. You know, you you show me a binary. My first thing is to think that's not real. How do we break this apart? And then how can we break that apart legally in a realistic way that helps people on the ground? Not just talking about it theoretically up in the air, but dragging it back down to the real lived experiences of these non-normative others.
00:08:01
Speaker
So practice as, again, the other side of theory and how to bring it down to, yeah, interesting. Right, making sure they're tied together because they get a little pulled apart, especially in the queer theory field. Alexa, this project draws on multiple disciplines or fields of study. We've talked about a couple of them, and we'll probably talk about more as we go through this interview. um But before we dive into discussing the details of your dissertation further, can you tell us about your disciplinary background and how you came to this work?
Historical Insights into Legal Research
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Speaker
Yeah, so I'm a trained historian. I focused on history. History was my main jam all through my undergrad career and then leading outwards. um And I focused on German history, specifically East German history. um I saw a lot of similarities between East German attitudes post you know-reunification and the American Southeast and how there's kind of oppositionality, there's conflict, there's kind of a difference and there's like ah a pushing against the assimilation to a greater common and narrative. And ultimately, I classified both as the losers of history. um The South was the loser of the Civil War. East Germany was a loser of reunification and how that was interpreted in
00:09:16
Speaker
kind of internalized by those people has led to kind of this right wing push we see today, I think. And coming in with that, I realized nobody was ever going to pay me to do East German history, unfortunately. and But with that narrative of the other, how does the other act in society? I came into law school and I started seeing that we really don't like the other in law. We want people to be as normal and as past looking as possible.
00:09:43
Speaker
So, following with that deep historical tradition I have, I was able to kind of pull into law and religion, and then seeing the ties to how that shaped queer identity and shaped the idea of being you know from someone who commits sodomy to you are a sodomite, where it becomes a full identity. And not only is it an identity, it's an otherized identity.
00:10:04
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which I felt like was very similar to kind of East Germans and Southerners. It was a very specific, otherized identity that's foisted upon the outside, but then embraced by the people holding that identity.
00:10:17
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um Alexa, two areas of law are really central to your dissertation. One, contract and two, arbitration. um And your work engages these concepts and norms from each of these areas. Can you tell us about some of the concepts or norms from contract law specifically that help solve the problem you've identified?
00:10:38
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Yeah, I think contract law in a very queer critical legal theory sense is unique in that it shows us what rights do we as a society value truly and what rights or do we just say we value but let people wave unwittingly.
00:10:55
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You know, you sign a million contracts a day. I tell my students first, you know, go to your email you sign up to things with, type in the word arbitration, tell me how many rights you've waived. No one can tell me, but they're very startled and they start getting nervous, but there's nothing you can do about it. And I think that kind of... the The dissonance between the ideal of contract law that it enforces promises and the reality that we have unwitting waiver and we're signing contracts left and right and have no idea what's going on shows us what we as a society truly value. So things like privacy.
00:11:29
Speaker
Do we value it? No, it's waveable. It's very, very waveable. So maybe we don't value it as much as we value, say, life. You can't wave your right to life, even if you do in a contract. We used to. You had duels before. Not anymore. Or, you know, um i mean financial rights, you know, fruit First Amendment rights. These are all easily waveable. Eighth Amendment, like, lots of these are waveable.
00:11:51
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But what ones do we not allow? I think contract law, the absurdities that exist within the distance between the real lived experience and what contract law purports to do shows us what is real in society and what we can actually work with, what is valuable. And so the other the other area of law that figures prominently in your in your in your work is arbitration law. um So tell us about what are what are some of the key concepts and norms that you're working with within arbitration law.
The Promise of Arbitration
00:12:18
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Yeah, so arbitration law is my main focus. It's my um what I'm trained in now recently. I published an arbitration. I write specifically for um religious arbitration in the past. But I think ultimately what's so powerful about arbitration is that it creates an alternative legal universe, one that doesn't challenge the normal legal universe at all. It doesn't counter. It doesn't challenge it. It doesn't fight against it. But it's completely alternative.
00:12:45
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And with jurisprudence in arbitration, you can make that alternative universe either much more apparent ah adherent to the United States legal universe by having a um using a manifest disregard policy that power empowers the um contract over the arbitrator.
00:13:05
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So the contract and then having the contract identify, you know, we're still tied to United States law. Our our choice of law is New York law. That arbitrator is now tethered to New York law. But if you say our choice of law is a value structure based on Al Sharif Sharia,
00:13:20
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um That arbitrator, there's nothing to compare American law to what the arbitrator's ruling on. They're completely doing their own thing in a totally different legal universe. And I think having that alternative is really empowering because you're not just allocating rights. You're dealing with you know the emotional aspects of a conflict between people. An arbitration, you can make someone sign an apology. You can make them write an apology.
00:13:44
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um You also have the practical benefits of it, is that it's more realistic for everyday people. It's cheap, it's fast, you have experts, and cool, you go through the whole litigation process, you make it to the Supreme Court, you still might lose for reasons that you don't really fully understand and your lawyer doesn't really understand.
00:14:01
Speaker
But here with arbitration, it's it's splitting the baby. It's more splitting the baby. And I think that's important for when you want to resolve an actual dispute between people. um When we do civil litigation now, it's you know very much in the public. It's limited by that. You're using this past common law language. And the queer community we've started to seeing with some divorce cases start bludgeoning each other.
00:14:25
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They start shifting into the wife of the family or the the wife role, the husband role, even though it's two women or two men. And they kind of slip into these past common law tropes. But you're not adhered to that at all in arbitration. You can come up with your own legal subject in arbitration, depending how you do this choice of law, choice of forum setting.
00:14:45
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So what I think is really powerful about it is that, one, it can do community building. We hide these conflicts we have within the queer community. We don't have to have everybody else in the political sphere looking to see, oh, the transgender people are fighting. So, hmm, they don't deserve rights. We could have our private privacy to our conflicts where we can express ourselves more fully, completely, and more honestly and authentically, and not have to worry about, oh, no, our messiness is leaking outside our community that's going to hurt our rights struggle.
00:15:16
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And I think um manifest disregard of law is a very specific doctrine to arbitration, which basically allows for an arbitrator to manifestly disregard the law. There's three avenues of this, which then allow for a community to decide how close do they want their alternative legal universe to adhere to the United States' ultimately legal universe. So um you can put the United States as king, so the yeah arbitrator can do anything, but as soon as they run up against anything that has to do with American law or federal law or this specific state's law at this specific time, then the arbitrator's cut down, their authority's cut down. But usually what you see is contract supremacy or arbitrator supremacy, where honestly the arbitrator can do whatever they want. um If they're tied to the contract, that's great. um That limits them, but it's not limiting them on the US law level.
00:16:09
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But if you say the arbitrator's supremacy, there's really no oversight, honestly, which is scary, is very, very scary, but I think can be very freeing, especially if it's given to a community that wants to create something really beneficial.
00:16:25
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If we can go back for a minute, you you you talk about some of some of the benefits of of arbitration law for communities that maybe want ah want to maintain a sense of of um um privacy in terms of their internal workings and internal
Religious Arbitration as a Queer Model
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disputes. And um my understanding is that your work here with the queer community is also building on what you've seen in religious communities. Is that is that accurate? And if so, can you tell us more about that? Yes. Oh, definitely. so I think looking at, say, the Orthodox Jewish community, um there are things like kosher laws that necessarily a U.S. court could never really litigate because that would just be establishment if they're deciding what is actually the kosher laws and that they're fighting over. that They can't do that. So that's one level of dispute. That's something that the U.S. law can't address at all that would otherwise just kind of be shoved under the bus.
00:17:18
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So I think, for example, um arbitration handles illegal or semi-legal industries really, really well. Hooters. You know, it's it's illegal to discriminate based on gender. We know that. But also, Hooters is like, I would never work at Hooters.
00:17:34
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I don't have the looks for it. Sorry, never going to do it. um My mom would never work at Hooters, sort of thing. She is too old, but that's all discrimination, but they have arbitration. So there's a mechanism where you can do these kind of things that are semi-legal, kind of illegal-ish, and have, or even just not even addressed by law at all, and still have an organized dispute resolution process that resolves the heated emotions within the community.
00:18:00
Speaker
So I think the main point in the thrust here is that I want actual community problem solving as opposed to community rights allocation. You know, Alexa, as a non-legal expert, your your concept of arbitration as an alternative legal universe is the first time it's kind of clicked for me. So thank you for that metaphor of it being kind of this separate sphere. um you know In your work, you also talk about arbitration's flexibility. And I assume this is the same thing of you know it being a system that allows flexibility in dealing with different aspects.
00:18:40
Speaker
Although you know flexibility isn't a word people often associate with law, so I'm just kind of curious how that plays out. Yeah. Common law is not very flexible at all. That's correct. And when you're working in that constitutional paradigm or you're working in that common law you know courtroom, U.S. courtroom paradigm, you don't have that flexibility.
00:19:00
Speaker
But arbitration, you have choice of law and choice of forum. And that can be defined very, very broadly or very, very narrowly. Apple has Apple Court and Apple Law. And when you have a conflict with Apple, you go to Apple Court and you do Apple Law. And that they can make it very flexible. They can make it very inflexible. It's a little bit more beneficial for Apple than it is for me, the rando, who has my iPhone.
00:19:23
Speaker
um But it allows for a lot of just very intentional thinking of how you want disputes resolved in the future. um It also you know gives a lot of power to that arbitrator, which then you might want to curtail in different ways, but you can do that on the back end.
00:19:40
Speaker
Like, with arbitration, the cool thing is, you know, a lot of laws, you you've you've written the thing, you've promulgated the law and it's done and now you interpret it. Here, you can kind of go back and fiddle around a little bit and say, okay, we're going to sign a new arbitration agreement that will resolve disputes from here on out that are now going to follow this new forum because that last one just didn't really work that well. You can adapt it and have it more responsive than law actually is.
00:20:05
Speaker
It's all really interesting and and innovative and and creative. And um i'm I'm wondering, what is the future of this um
Future Explorations in Queer Legal Frameworks
00:20:13
Speaker
work? You're working working on this dissertation. What do you see you know as the as the kind of end end goal, either in scholarship or in practice?
00:20:23
Speaker
Yeah, so there's there's two areas here. One is I still want to continue kind of outlining and ah starting a conversation about what Queer Choice of Law and Queer Choice of Forum could look like within the queer community with other members of the queer community. This is a start of a conversation and i I want to get that going for the rest of my career, honestly. There's a second part that as I was researching this and the more I get into the field of law and religion and the more I get in touch with the queer community, I'm starting to realize that
00:20:54
Speaker
They're very, very similar in that to be religious is almost exactly the same as to be queer. It's a three-part situation where, one, you do queer stuff, you do Christian things, you do Jewish things, you, too, identify as it. So I identify as queer, I identify as Jewish, Christian, and then I want to be perceived as it by the rest of society. I want to pass, basically, as we call it in the transgender community.
00:21:19
Speaker
It's passing. You want to pass as Christian. You want to pass as Jewish. And so having all three of those, I believe, and what I'm going to start digging into and what I think the crux of a lot of my scholarship will be is that these are all expressions of the internal conscience and that we have free exercise of a religious conscience. But I think there it's just a good conscience, a free exercise of a good conscience, and that queer is just an aspect of being your expression of conscience, your internal conscience outwardly.
00:21:49
Speaker
Yeah, there's a sociologist, Robert Putnam, who talks about religion as a combination of believing, behaving, and belonging. And your kind of you know analogy between that and any social group, I think, is a strong one. um And kind of invites questions on what does it mean to be religious or a member of a different group. But that's fascinating.
00:22:12
Speaker
as we think about arbitration and the kind of of the rights that you can contract away, um kind of can you, can you, you touched on this a little bit, could you just kind of spell that out more for for folks in terms of, you know, we we we encounter these kinds of agreements in our consumer contracts, sometimes we encounter them in employment, um sometimes, you know,
00:22:35
Speaker
um when we use goods, we undertake different services or avail ourselves of different services or married. um Can you just tell a little bit more about that landscape as how people might encounter yeah this in their daily life?
Power Imbalances in Contract Law
00:22:49
Speaker
Yeah, so one component, and this is kind of the a very queer theory component of recognizing contract law is that it reinforces power imbalances.
00:23:00
Speaker
um It is a very power-centric force of law, and it reinforces whatever power system comes into it. So if you are the weaker party signing a contract, you will likely be the weaker party in any subsequent litigation. um You're probably at a little bit of a disadvantage there. So I think in the queer sense, I just accept that nobody really understands the strength of contract law that nobody will. There's no amount of education that will show people or let them understand because it's so ubiquitous. Like right now, if I started coming out of the womb reading every single contract that I sign from coming out of the womb to death, I couldn't. I couldn't read every single contract that I'm a party of. It would be impossible.
00:23:46
Speaker
So there's an absurdity here that I think, that I just have to embrace. That like, we're going to create this little safe bubble over here. You can sign your contract in, you don't really understand what you're doing, but now you're in the safe bubble. um I think there's another component of contract law that could be helpful here, but I'm not sure watching the current trends of unconscionability law, like unconscionability defenses, whether it'll be a save.
00:24:15
Speaker
I don't know if it'll solve this. I think it has the power to solve this kind of absurdity of contract law, but I don't know if it's going to be used in that way legally. um Basically, unconscionability is the stopgap for a really gross power imbalance. It's where you have a procedural power imbalances, where it's you know um rights that you have to do, things that you have to do, but the the bigger, stronger party doesn't have to do. like you can only you know, take your things to arbitration, but the the stronger party can decide to litigate or arbitration. That would be a procedural, like, unconscionability issue. Or there'd be a substantive unconscionability issue where it's just, you know, something, your damages are limited so severely that there's no point to even litigating.
00:25:00
Speaker
or you know the the structure of it itself, like your evidence is weighed less so, or based on, you see this sometimes in Sharia courts where um women's voices are weighed less. You see this also in Orthodox Jewish courts. Women's voices late as witnesses are weighed less than men's voices. So I think unconscionability could help these kind of power imbalances and abuses that happen.
00:25:24
Speaker
but i i I think it's becoming a weaker defense as opposed to a stronger defense in law as contract becomes more ubiquitous and strong.
Impact of the Me Too Movement on Arbitration
00:25:33
Speaker
and Alexa, we hear in the news you know in recent um months and years the the Ending Forced Arbitration Act, which applies specifically in the context of sexual assault and sexual harassment in the workplace. um And I'm wondering if you could tell us a little bit more about that and how that figures into your thinking about this.
00:25:49
Speaker
Yeah, definitely. So this is in direct response to the Me Too movement. um And it was kind of a surprise for our people who study arbitration. There's been discussion about the ending forced arbitration of sexual assault harassment act um for 10, 15 years now bumping around Congress. But it was very suddenly pushed through and I think in response to Me Too. um What this act does effectively is it responds to Harvey Weinstein, that situation where you have a, you know,
00:26:19
Speaker
Big man employer, it's usually a man, um big man employer who has a lot of lowly ah people in his company and who he sexually assaults or harasses. you know They go to arbitration because they've signed you know they've signed an arbitration agreement in their employment contract and then it is handled in arbitration. They're paid off and then they have to sign an NDA to not talk about it. And then the next lowly actress comes into Harvey Weinstein's office and the whole thing starts again.
00:26:45
Speaker
So the point of this was to cut off that repeat offender problem where you have um one person using arbitration to hide their crimes, basically. And we've seen kind of an impact of this in recent cases like the Bixler versus Scientology case.
00:27:05
Speaker
where um Bixler was a former Scientologist who had Scientologists make all of their members sign and re-sign and re-sign multiple times, um arbitration agreements to solve any and all disputes they may have with the church. And Bixler and a few other women who had left the church had been sexually assaulted or harassed during their time in the church, had left the church, and then had reported to police, which then resulted in more harassment occurring to them,
00:27:32
Speaker
sexual assault, sexual harassment, um poisoning of their dogs, just awful things that was supported by the Church of Scientology. And these women were going to the police about it and Scientology was saying, this has to be litigated within our, our patrol tribunal. It has to be within the Scientology tribunal. And the women were saying, we're not going to get a fair bet because we're already determined as like bad actors by the Scientology tribunal and by Scientology generally.
00:28:02
Speaker
And um this went to the California court, um and the court let the women out of the arbitration contract, but it was based on their free exercise of religion right, which I wrote an amicus brief against in that saying, um it is not a free exercise, right? This is an unconscionability right. Their contract had ended. it was The relationship was over. Instead, this became a zombie arbitration agreement that was shambling on past the death of the contract. That was the problem, not the First Amendment right of these women to you know convert from Scientology. So what this act's goal was, was to stop arbitration being used as a mechanism for controlling people outside the contract.
00:28:46
Speaker
The harm that can be identified when you know a woman is sexually assaulted, usually a woman, but sometimes men sexually assaulted or harassed in the workplace is that they're not the only victim there. There's a lot of victims there. There's even victims who don't even know that the harassment's even occurring, but they don't get a promotion because the person who accepted the harassment then got promoted instead of them.
00:29:09
Speaker
or people in the workplace who are being paid less because they're not willing to and embrace yeah the sexual assault or harassment for the promotion, they get kind of sidelined and then fired and their career is impacted by it. So it's this whole process is created have to have a funnel for this one person and then to create ignorance around potential victims.
00:29:29
Speaker
um And to create ignorance around folks who might realize that there's a collective victim here that, you know, other women have been sexually assaulted or harassed and we can actually come together and talk about this. It's to silence those people and that collectivity and the harm of that collectivity. So the EFA Act is a great step forward in kind of tamping down on the abuses of arbitration. um I haven't seen any cases really getting into the nitty-gritty of interpreting it yet. We're still kind of waiting on that front.
00:29:58
Speaker
um but i I think it's a great trend in kind of stopping that power, that universe created by arbitration, the alter alternative legal universe from leaking outside of the parties involved in it. Once it kind of starts leaking outside and controlling parties who aren't members of that contract, then it gets very, very dangerous very quickly. ah Alexa Windsor, thank you for joining us today. We appreciate your time. Thank you so much. Had a lovely time.