May 30, 2016
A statue of Roland at Metz railway station, France
In commemoration of Memorial Day, a selection from The Song of Roland, an epic poem from the days of Charlemagne:
The Horn
CXLVIII
As Roland gazed on his slaughtered men, He bespake his gentle compeer agen: “Ah, dear companion, may God thee shield! Behold, our bravest lie dead on field! Well may we weep for France the fair, Of her noble barons despoiled and bare. Had he been with us, our king and friend! Speak, my brother, thy counsel lend, How unto Karl shall we tidings send?” Olivier answered, “I wist not how. Liefer death than be recreant now.”
CXLIX
“I will sound,” said Roland, “upon my horn, Karl, as he passeth the gorge, to warn. The Franks, I know, will return apace.” Said Olivier, “Nay, it were foul disgrace On your noble kindred to wreak such wrong; They would bear the stain their lifetime long. Erewhile I sought it, and sued in vain; But to sound thy horn thou wouldst not deign. Not now shall mine assent be won, Nor shall I say it is knightly done. Lo! both your arms are streaming red.” “In sooth,” said Roland, “good strokes I sped.”
CL
Said Roland, “Our battle goes hard, I fear; I will sound my horn that Karl may hear.” “‘Twere a deed unknightly,” said Olivier; “Thou didst disdain when I sought and prayed: Saved had we been with our Karl to aid; Unto him and his host no blame shall be: By this my beard, might I hope to see My gentle sister Alda’s face, Thou shouldst never hold her in thine embrace.”
CLI
“Ah, why on me doth thine anger fall?” “Roland, ’tis thou who hast wrought it all. Valor and madness are scarce allied, Better discretion than daring pride. All of thy folly our Franks lie slain, Nor shall render service to Karl again, As I implored thee, if thou hadst done, The king had come and the field were won; Marsil captive, or slain, I trow. Thy daring, Roland, hath wrought our woe. No service more unto Karl we pay, That first of men till the judgment day; Thou shalt die, and France dishonored be Ended our loyal company A woful parting this eve shall see.”
CLII
Archbishop Turpin their strife hath heard, His steed with the spurs of gold he spurred, And thus rebuked them, riding near: “Sir Roland, and thou, Sir Olivier, Contend not, in God’s great name, I crave. Not now availeth the horn to save; And yet behoves you to wind its call, Karl will come to avenge our fall, Nor hence the foemen in joyance wend. The Franks will all from their steeds descend; When they find us slain and martyred here, They will raise our bodies on mule and bier, And, while in pity aloud they weep, Lay us in hollowed earth to sleep; Nor wolf nor boar on our limbs shall feed.” Said Roland, “Yea, ’tis a goodly rede.”
CLIII
Then to his lips the horn he drew, And full and lustily he blew. The mountain peaks soared high around; Thirty leagues was borne the sound. Karl hath heard it, and all his band. “Our men have battle,” he said, “on hand.” Ganelon rose in front and cried, “If another spake, I would say he lied.”
CLIV
With deadly travail, in stress and pain, Count Roland sounded the mighty strain. Forth from his mouth the bright blood sprang, And his temples burst for the very pang. On and onward was borne the blast, Till Karl hath heard as the gorge he passed, And Naimes and all his men of war. “It is Roland’s horn,” said the Emperor, “And, save in battle, he had not blown.” “Battle,” said Ganelon, “is there none. Old are you grown – all white and hoar; Such words bespeak you a child once more. Have you, then, forgotten Roland’s pride, Which I marvel God should so long abide, How he captured Noples without your hest? Forth from the city the heathen pressed, To your vassal Roland they battle gave, He slew them all with the trenchant glaive, Then turned the waters upon the plain, That trace of blood might none remain. He would sound all day for a single hare: ‘Tis a jest with him and his fellows there; For who would battle against him dare? Ride onward – wherefore this chill delay? Your mighty land is yet far away.”
CLV
On Roland’s mouth is the bloody stain, Burst asunder his temple’s vein; His horn he soundeth in anguish drear; King Karl and the Franks around him hear. Said Karl, “That horn is long of breath.” Said Naimes, “‘Tis Roland who travaileth. There is battle yonder by mine avow. He who betrayed him deceives you now. Arm, sire; ring forth your rallying cry, And stand your noble household by; For your hear your Roland in jeopardy.”
CLVI
The king commands to sound the alarm. To the trumpet the Franks alight and arm; With casque and corselet and gilded brand, Buckler and stalwart lance in hand, Pennons of crimson and white and blue, The barons leap on their steeds anew, And onward spur the passes through; Nor is there one but to other saith, “Could we reach but Roland before his death, Blows would we strike for him grim and great.” Ah! what availeth! – ’tis all too late.
CLVII
The evening passed into brightening dawn. Against the sun their harness shone; From helm and hauberk glanced the rays, And their painted bucklers seemed all ablaze. The Emperor rode in wrath apart. The Franks were moody and sad of heart; Was none but dropped the bitter tear, For they thought of Roland with deadly fear. Then bade the Emperor take and bind Count Gan, and had him in scorn consigned To Besgun, chief of his kitchen train. “Hold me this felon,” he said, “in chain.” Then full a hundred round him pressed, Of the kitchen varlets the worst and best; His beard upon lip and chin they tore, Cuffs of the fist each dealt him four,
Roundly they beat him with rods and staves; Then around his neck those kitchen knaves Flung a fetterlock fast and strong, As ye lead a bear in a chain along; On a beast of burthen the count they cast, Till they yield him back to Karl at last.
CLVIII
Dark, vast, and high the summits soar, The waters down through the valleys pour, The trumpets sound in front and rear, And to Roland’s horn make answer clear. The Emperor rideth in wrathful mood, The Franks in grievous solicitude; Nor one among them can stint to weep, Beseeching God that He Roland keep, Till they stand beside him upon the field, To the death together their arms to wield. Ah, timeless succor, and all in vain! Too long they tarried, too late they strain.
May 26, 2016
Unruly Arbitration
By David Reiss
I had blogged earlier about the Consumer Financial Protection Bureau’s proposed rule regarding arbitration. Along with 209 other law professors, I submitted a comment letter regarding it. The letter opens,
We write to strongly support proposed regulation CFPB-2016-0020, RIN 3170-AA51. We are 210 law professors and scholars who teach and write in such disciplines as civil procedure, contracts, consumer law, financial services law, and dispute resolution. This regulation would accomplish two important goals. First, it would bar companies that provide consumer financial products and services from imposing pre-dispute arbitration clauses combined with class action waivers. Second, the proposed regulation would require regulated parties to collect and transmit to the Consumer Financial Protection Bureau (“CFPB”) information regarding use of arbitration in the consumer financial context.
As a group of experienced legal academics, we approach the issues of pre-dispute arbitration clauses and bans on class proceedings from a myriad of different perspectives and political sensibilities. Nonetheless, based on our varied scholarship and teaching backgrounds, we all agree (1) it is important to protect financial consumers’ opportunity to participate in class proceedings; and (2) it is desirable for the CFPB to collect additional information regarding financial consumer arbitration.
The benefits and detriments of both forced arbitration and class actions have been debated vigorously for over twenty years in academia, as well as in litigated cases, Congressional hearings and among the general public. Although some good empirical work has been done on these issues, scholars have consistently asserted the need for more and better data-driven studies. Too often, heated discussions have been based on speculation, rather than data; this is especially problematic given the largely private world of confidential arbitration. Accordingly, we were very pleased when Congress, in enacting the Dodd-Frank Wall Street Reform and Consumer Protection Act, mandated in Section 1028(a) that the CFPB study “the use of agreements providing for arbitration of any future dispute . . . in connection with the offering or providing of consumer financial products or services. . . .” After soliciting suggestions on how to conduct such a study, receiving and incorporating ideas from many corners, and spending three years collecting and analyzing massive amounts of data, the CFPB produced a comprehensive and impressive report in March 2015.The results of this study support the proposed regulation, as discussed below.
CFPB’s study clearly shows that pre-dispute arbitration clauses are extremely common in the consumer financial context, and, indeed, are becoming standard practice across a number of different industries. While the incidence of pre-dispute arbitration clauses varies substantially depending on the consumer product or service, CFPB found that mobile wireless and payday loan contracts virtually always compelled consumers to resolve future disputes through arbitration, and that checking account and credit card contracts mandated arbitration roughly half of the time.2 The CFPB study also found that almost all of the studied arbitration clauses precluded affected consumers from participating in class actions. Yet, despite the prevalence of these clauses, the CFPB found that the majority of financial consumers are not entering into these arbitration clauses knowingly. Based on a national telephonic survey of credit card holders, the CFPB determined, unsurprisingly, that most consumers simply did not focus on dispute resolution clauses when deciding on a credit card, and the vast majority did not understand the implications of forced arbitration. Less than seven percent of consumers whose credit card agreements included arbitration provisions understood that they were precluded from suing the company in court should a dispute arise.
As a group, we have varying perspectives on whether the CFPB regulation goes far enough. Some among us believe the agency should issue a broader regulation banning forced arbitration clauses altogether in consumer financial contracts, whether or not these clauses contain class action waivers. Others among us believe that using pre-dispute arbitration agreements in the consumer context may not be harmful, or may even be beneficial, apart from the class action prohibition. And, still others among us are not sure where they stand on the desirability of banning forced arbitration in this context. Nonetheless, these differences in our perspectives do not undercut our strong agreement that the CFPB is right to both prevent companies from using arbitration to take away financial consumers’ opportunity to participate in class proceedings and require the submission of additional data and information that will allow the agency to further study this important area. We believe that the proposed regulations are critically important to protect consumers and serve the interests of the American public. (1-2, footnotes omitted)
Jean Sternlight at UNLV led the effort to get this letter to the CFPB.
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