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Comment by DarkKomunalec | Hacker News Reader

As a society, we have to decide - do we allow economic pressure to be used to make people give up their fundamental rights?

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As a society, we also have to decide if being able to file a class action suit is a fundamental right or merely a non-fundamental optional mechanism for vindicating other rights, fundamental and otherwise.

The US has already decided that the right to sue is fundamental: http://www.firstamendmentcenter.org/right-to-sue/

Such waivers limit this right. I struggle to imagine an ideology that thinks giving up a fundamental right is wrong, but limiting it is ok. Given how rarely arbitration courts rule against the one who selected them, the difference between limiting and forfeiting the right entirely is slim to none.

I think the way they justify it is that the waiver is "voluntary," e.g. you have to agree to it in a contract.

I personally wouldn't have a problem with that if the contract terms were negotiated by two sophisticated parties. However, the reality is that these contracts are often pro-forma and and "signed" without negotiation in the context of great disparities in power and sophistication. IMHO, the latter is troubling and shouldn't be allowed. There should be a whitelist of a limited number of types of terms that can be included in a pro-forma contract like these, and binding arbitration shouldn't be one of them.

>As a society, we have to decide

Do you mean current decisions were made by an entity outside of the society

There were no current decisions - such contracts are relatively new, and few laws were passed explicitly for or against them - mostly against, but were struck down by the Supreme Court.

And it does not follow that a decision made by an entity inside the society, was made by the society as a whole, or that it has any sort of majority support, even if it is law. By that logic, you could argue that we, as a society, decided that one-click shopping is worthy of patent protection, and that it should be illegal do unlock your own phone.

There is no "we" unless there is unanimous decision. And practically it is not possible for nation states. You may suggest "As a society, majority have to decide.. " if you are a believer of Democracy.

Edit: I know this may sound just technicality, I just dislike use of "we" in politics.

I don't think there is any fundamental right to sue private parties in the US. If you find it, please post about it.

First, as a non-lawyer, I would say that it is implied by the Seventh Amendment. Second, your premise is flawed, as according to the Ninth Amendment, there can be fundamental rights that are not explicitly listed.

Included in the 1st amendment: http://www.firstamendmentcenter.org/right-to-sue/

Section 1983.

The bill of rights merely lists some rights that you already have even without the bill of rights. They are called natural rights -- in fact the bill is a limit on government, not a grant to the people from government.

That being said, the constitution has established an independent judiciary which has little limit to what matters it can opine. You have a right to petition that judiciary. You're somewhat correct in that you don't have a right for them to listen.

> That being said, the constitution has established an independent judiciary which has little limit to what matters it can opine.

I don't think that's actually true. IANAL, but IIRC the jurisdiction of the federal judiciary is quite limited compared to that of the states.

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