It's screwed up that corporations now have access to something like sovereign immunity [1]: the ability to not be sued in court by their customers or employees unless they consent to the suit.
[1] https://en.wikipedia.org/wiki/Sovereign_immunity#United_Stat...
But... the whole arbitration thing is itself a reaction (in many cases^) to general suckness of the legal system which is primitive, clunky, slow and often more trouble then the trouble it's trying to solve. It's wide open to abuse, and a lot of what we call law is in practice a mature "game" based on abuse of the legal system.
So, yep.. these should be ilegal. But we also need a legal system capable of functional resolution of these disputes fast, without abuses, mutual destruction stalemates and burdensome "costs" including eventualities such as "as an employer, you will always be in labour court no matter what."
That said, sexual harassment in the workplace is an "our vision of society" type of problem. There's a case for giving it it's own courts or public dispute resolution frameworks.
Law really needs to evolve. We are not settling disputes between norman kings and saxon lords any more.
^sometimes it's just naked self interest. Ie, We will win more often in private arbitration, so let's write it into the contract and hope they don't notice or are not in a position to object .
That said, sexual harassment in the workplace is an "our vision of society" type of problem.
I agree, but funnily, I think the thing the legal system would evolve into in order to facilitate "functional resolution of these disputes fast, without abuses, mutual destruction stalemates" etc. would end up looking a lot like independent binding arbitration.
Maybe. It's interesting to note that businesses still prefer court to arbitration in their disputes with each other. https://www.nytimes.com/2008/10/06/business/06arbitrate.html. And business-to-business arbitrations tend to have many of the procedures (and expense) of litigation--lawyers, briefing, hearings, etc. The biggest advantage is that arbitration can be lot faster, because the civil court system is so overloaded with cases.
One respected scholar, Prof. Tom Stipanowich, suggests that this is because lawyers have incentives to import familiar and expensive procedures from litigation (because they hate to lose and therefore want all the discovery and motion practice that they can get), and arbitrators have incentives not to push back too hard against these lawyers (because lawyers can object to the appointment of an arbitrator, and so arbitrators don't want to develop a reputation among lawyers as "difficult"). [0]
[0] https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1297526
Or at least updated to protect against modern abuses such as purchased adjudicators and unconscionably forced waivers of a meaningful right to argue for relief before a real court. The federal bit of alternative dispute resolution doctrine responsible for this mockery dates all the way back to the 1920s and desperately is in need of a revisit.
When I see a wish for something to 'evolve', I generally can substitute "get society to devote an order of magnitude more resources to," and arrive at a better description of what's actually being wished for. Education needs to evolve, our prison system needs to evolve.
But the signs of evolution are already there. Arbitration is precisely a legal evolution. Private prisons and schools are evolutions of their respective institutions as well. The problem is that they don't solve the resource scarcity that is really wished for.
People generally don't want to settle for an evolved solution, they want someone else to pay so that they can take advantage of the one that's already there that we know does a good job.
The only fix here is to have fewer, but better institutions, and for them to focus their efforts on engineering, not innovation. What's a model for introducing private entities into public spheres that actually drives better outcomes? I would bet that Europe offers many interesting examples to base policy on, but our current political climate seems too caustic to make progress on.
> > Law really needs to evolve.
> When I see a wish for something to 'evolve', I generally can substitute "get society to devote an order of magnitude more resources to," and arrive at a better description of what's actually being wished for.
The thing about Law is that you can just look at what other countries are doing and think about whether that's an improvement over the status quo.
In certain jurisdictions (I'd wager in most developed countries), relationships that are inherently unequal (i.e. in which one party is significantly more vulnerable than the other) -- such as customer vs. company or employee vs. employer -- are protected by rules that are also unequal in nature. The burden of proof usually lies on the stronger party, and certain protections are awarded only to the weaker party.
The underlying principle that companies and people must be treated differently when contracting also applies to other interactions. In certain jurisdictions, EULAs are virtually worthless because you can't assume a reasonable customer would read all the legalese in those documents, let alone understand it. Therefore, even if users click or sign a piece of paper saying "they agree and understand", that acknowledgement is worthless. Instead, they are judged against what you'd expect a "reasonable, average person" to believe constitutes appropriate use.
Again, IANAL so I'm being very vague on details, but my point is that we don't necessarily need "to devote an order of magnitude more resources". And for that matter, even if we did, that doesn't mean it wouldn't be preferable to do so.
i think there should be at least a couple additional levels between small claims and full blown court. The lack of those levels is what arbitration mostly trying to fill.
Wrt. the original issue of forced sexual harassment arbitration i guess Uber is just trying to get a good PR while it can - federals, NY, CA and a bunch of other states are coming with legislation outlawing it : https://www.jdsupra.com/legalnews/state-legislatures-tackle-...
I think at this point, in most cases, arbitration is meant to fill the role of
1. keeping PR problems hidden (such as sexual harassment, etc) by keeping them out of open court, and
2. a way of practically eliminating legal liability by stopping class action lawsuits.
I don't think those entities that deploy arbitration on a mass scale really care about the efficiency of the court system at all.
That "loss of power" may be welcomed by many lawmakers, many of whom are ideologically committed to "starving the [state]." [1]
The current Chief Justice of the Supreme Court had a hand in designing and implementing this arbitration strategy, before he was appointed to the court. Afterwards he supported it in his opinions. [2]
The current head of the Consumer Finance Protection Bureau is actively trying to undermine its mission [3], and wants to shift its focus away from consumer protection to "business costs." [4]
[1] https://en.wikipedia.org/wiki/Starve_the_beast
[2] https://www.nytimes.com/2015/11/01/business/dealbook/arbitra...
[3] http://www.latimes.com/business/lazarus/la-fi-lazarus-mulvan...
[4] https://www.wsj.com/articles/mulvaney-to-prioritize-business...
What exactly is the conspiracy theory here?
I figured that's what you'd say. I think you misunderstand the meaning and connotations of the term "conspiracy theory." It doesn't mean, literally, "a theory that a group is conspiring." A true conspiracy theory, at its core, is an outrageous and unbelievable idea that gets elaborated on to an unreasonable degree. Think UFO coverups and black helicopters of the New World Order.
It's not outragious and unreasonable to think "the right wing" is acting together to "reduce the scale of government" or support "business friendly" polices like binding arbitration at the expense of consumers. They literally campaign, in public, on those and similar ideas.
You're getting way, way off track. This whole subthread started when someone asked why lawmakers would "cede power" to arbitrators, and the response was maybe they don't mind, with examples where they sought reduced power for the government. You're the one who seems intent on making this about blaming them.
That point is preserved as a quotation in one of the other replies, and it seemed kinda facile.
> Honestly, this thread (and HN in total) is increasingly a lost cause
This subthread certainly wasn't good, but that happens when people double down on bad points, like the "conspiracy theory" one.
I'm not sure what's facile about supposing that lawmakers are willing to compromise on reducing load on the court system. I don't understand how someone would find that motivation "more weird" than thinking that a controlling share of lawmakers are "ideologically committed" to bringing about the exact status quo we find ourselves in. If anything, I find your explanation to be the facile one. Simple explanations are emotionally appealing; simple explanations that scapegoat some disliked group of people are especially emotionally appealing.
Your particular explanation has two flaws, however:
(a) If conservatives really had their way, this isn't where we would have ended up. This is a compromise, or at least a counter-response to the state of affairs where there are so many implied obligations, warranties, and disclosures--a state of affairs that conservatives don't seem to support in the first place--that people need to sign or agree to 20-page legal documents as often as they do throughout the course of their lives.
A couple concrete examples:
* Most commercial software EULAs require you to agree that not to use the software to run nuclear reactors, because if that wasn't in there, and you used it to run a nuclear reactor, and it crashed, you and everyone who got radiation poisoning would take the software company to court and that would be a stupid waste of time, so to countervent that, we have EULAs that specifically call out that use case as not supported.
* Every apartment lease I have signed has a clause that forbids me from subletting the apartment, because otherwise, I would have an implied legal right to sublet my apartment. If that implied legal right didn't exist, that would be one fewer clause that I would have to read and initial when I rented an apartment.
Conservatives aren't and weren't the ones imposing those obligations in the first place. But, now that they exist, there are very long legal documents that people have to agree to. And, as it happens, when there's a dispute over whether either side has held up their end of a long legal document, it ends up in court and everything is expensive. Arbitration is a reaction to that, and since US law tends to operate in a "permitted unless explicitly prohibited" way, there wasn't necessarily any particular ideological or political action required to make mandatory arbitration possible in the first place (although if you know of any, please share).
(b) Given that this is a compromise, why is it a relatively stable compromise? Why doesn't it just get overturned or outlawed in every US state where Democrats control the state government? Two of those states are Delaware and California, for example, and since a lot of companies operate in California and incorporate in Delaware, the laws of those two states would have an outsized impact on the rest of the country.
I can think of one reasonable explanation: Democratic lawmakers in these states understand that the court system doesn't even have the capacity to handle all the litigation that it would need to handle without mandatory arbitration in place, so they maintain the shitty compromise and try to gradually angle for a more sustainable solution to the problem.
(Since we're not discussing conspiracy theories, I'm not going to touch the notion that Delaware and California Democrats are secretly corporatist "starve-the-beast" conservatives and that the two-party system is a sham.)
Most of the contacts, licenses, agreements, terms and conditions, etc. that entail mandatory arbitration exist in the first place as a response to well-intended laws, regulations and judicial precedents that come from pro-consumer or pro-employee motivations. If you're an ideologically consistent conservative, you probably want to just get rid of those laws and regulations, at which point you wouldn't need a mandatory arbitration clause or, indeed, the entire remainder of the massive legal document.
I don't know any conservatives who say, "yes, in order to use consumer software, you should have to agree to a ten-page document that says you shouldn't use it to run a nuclear reactor, but only if we put a clause in there about mandatory arbitration!" I think the conservatives would rather not have the red tape in the first place.
Of course, if you keep tut-tutting about it being "very telling" when someone is capable of explaining opposing viewpoints, then you save yourself the trouble of ever having to engage with those viewpoints and your bubble is intact. Congratulations on that. I commend you on your emotional and intellectual maturity.
God, HN has gone to shit.
And I'm sure you've demonstrated considerable emotional maturity disparaging consumer and employee rights, while complaining about comments on the internet.
Since it’s obvious why liberals are unhappy, the only piece I needed to add was an explanation of why conservatives are unhappy with this compromise.
I shouldn’t have to restate the entire context of a threaded conversation every single time I respond to it, but apparently I do or otherwise people are going to think I’m some type of conservative and insult me over it. I’m not a conservative, but I also don’t think insulting people over political disagreements is acceptable in the first place.
These two explanations aren't even contradictory unless the state is motivated by profit, which it clearly isn't, so your comment seems like a bit of a red herring.
Your comment makes an implicit assumption that the goal of the state ought to be maximizing its revenue to expenses ratio. Some (e.g., the writers of the US constitution and the bill of rights) believe the state's interests ought to be aligned with those of the underlying population.
When the goal of the state flips from "profit" to "maximize general welfare", it's no longer obvious that "decreasing court expenses" at the expense of "eroding consumer protections" is necessarily in the state's best interest.
Of course, that argument is largely baloney, but it's not straight up insane.
This is the idea of "freedom" that the right wing loves pushing, that all things that matter can be discussed as one-to-one interactions.
The argument is baloney because if all companies do it you don't really have a choice. You won't see this fact if you always think in terms of one-to-one interactions.
"Freedom" as one-to-one interactions is structurally favorable to large corporations.
For instance, you could just as easily chosen to write a completely different comment. But alas, you did not.
So do you admit you're wrong to the degree you think your comments shouldn't be seen? Or can you just not stand the downvotes?
I think withdrawing and mass deleting half of a conversation is kinda bad form.
The people most of these clauses are forced upon usually have the least amount of bargaining power. Thus, they're usually not getting anything extra (unless you count just getting or keeping the job in the first place as extra).
While you are right, it's not reasonable for any person to assume they are waiving their rights to legal action if you are raped by using a transportation service for merely clicking on 'Accept' to the EULA.
The criminal matter can still be reported and dealt with the normal way, no? Isn't what is being waived is suing a third party for employing the accused (specifically, suing for negligence in employing the accused when they shouldn't have)?
[1] https://www.recode.net/2017/6/7/15754316/uber-executive-indi...
Ah yes, the cherished freedom to "choose" to be scammed and taken advantage of by others. It's really the most important of all our freedoms. /s
I think the bigger problem is that people don't understand what they are signing. To me the real issue is the lack of informed consent in these contracts, as people don't understand the consequences of an arbitration agreement. This also results in the few people who do having no market power left to enact any change.
It's not so binary. You could allow for regulated gambling that mitigates the social problems, but ban unregulated gambling.
> To me the real issue is the lack of informed consent in these contracts, as people don't understand the consequences of an arbitration agreement.
I agree that's part of the issue, but not the "real" issue. For example: if you desperately need a job and someone puts an all-or-nothing employment contract with an arbitration clause in front of you, you'll sign even if you fully understand that arbitration is a bad deal for you.
The real issue is that these arbitration clauses can be put in a non-negotiable, all-or-nothing contract by the more powerful and savvy party to the determent of the weaker one.
In this case, given the difference in power between the two entities, I think the issue is still consent not being valid. Arbitration is one bad thing to stick in, but there are many other clauses that a person would normally not agree to but who are coerced by the situation to agree to. To me the issue is still a matter of given consent when in a coercive interaction where the parties involved has significant power differences.
I always assumed that no contract can be "above" the law.
In fact I just checked the Constitution in my country and it specifically says that no other law can cancel the fact anyone can address justice.
Law and justice are different things. This is about lawsuits, demanding money as compensation for wrongs. Lawsuits are about settlements and confidential agreements negotiated between parties. Justice is a matter for criminal courts. Justice is about the government punishing people who break laws. That cannot be usurped by contract. Uber employees who break the law are still prosecuted regardless of eulas.
My question still stands though, who decides it's just bad policy and it's not in fact hiding/helping/aiding the criminal?
Torts are absolutely part of the Justice system. https://en.wikipedia.org/wiki/Tort
You see a similar thing with the US criminal system and plea bargains.
I have a friend who lost a real estate arbitration case because of that, and got no compensation for serious structural issues that weren't disclosed and were caused by a remodel undertaken by the previous owner.
Or it should always be a separate agreement from any other, that can be signed or not depending on if both parties have the same view of the court system, without affecting other business between them.
Countries get more skeptical when it's in standard seemingly non-negotiable language from one of the businesses.
Most countries get very skeptical and often ban pre-dispute binding arbitration when one party is an employee or a consumer, especially if the other party drafted the language.
In the last few decades, the US has become the exception to that.
All countries I'm aware of (probably not including your country) will allow consumers and businesses to agree to arbitrate a dispute that has already arisen, with binding effect.
However, there are laws that legalize and codify private arbitration and how those work. In that regard, the contracts operate within the law.
And contracts cannot generally be above the law in any reasonably jurisdiction. The law enables contracts to function in the first place and also governs what they can and cannot do.
Now, you may think that the law is bad, but that's different from this being a failure of the rule of law; it's success in the rule of (bad) law.
That's not what it does. I think arbitration (except between companies) is dangerous, but arbitration doesn't mean one party decides, but a third-party (arbitrator).
There isn't a vibrant market for arbitrators. A consumer-oriented one clearly wouldn't be approved by the industry board, and so couldn't be chosen even if the consumer would pay for it. It's a dog and pony show to conjure a purportedly neutral third party, but that "third party's" ongoing business relies on delivering the company's desired outcome. Hence, agent.
Furthermore, the deeper repudiation of meaning is the assertion that the arbitrator's decision is exempt from review by a proper court.
But if you want to talk about practical evidence, then why exactly do companies have to trick consumers into "agreeing" to future mandatory arbitration?! If arbitration is truly beneficial for both parties, then a consumers can always choose to enter into binding arbitration after a dispute arises!
>But if you want to talk about practical evidence, then why exactly do companies have to trick consumers into "agreeing" to future mandatory arbitration?! If arbitration is truly beneficial for both parties, then a consumers can always choose to enter into binding arbitration after a dispute arises!
#1 - Contract terms are not a "trick." Making arbitration mandatory across the board is far better for the company than having it decided case-by-case, because they can estimate costs better.
#2 - Consumers don't know anything about arbitration, and much of what they think they know isn't true. Are you going to argue that consumers are weighing real cost and benefit? You're the one whose position is based on the idea that consumers aren't smart enough to avoid this terrible idea (that isn't).
Re #1 - a clause that allows one to completely opt out of it, but only within 30 days after opening an account, by snail mailing (an onerous communication method compared to the customary method of the relationship) to a specific address buried in pages of terms. That's basically purpose-designed to take advantage of consumer uninformedness/laziness!
Re #2 - there's a big difference between how much effort will be spent when opening an account, versus looking into a problem.
Your general argument is casually resting on these common falsehoods that consumers proactively read tens of pages of terms, that interpreting dense legalese (including the context of relevant case law) is straightforward to the average consumer, and that companies aren't just continually attacking consumers with garbage terms [0] just because they can (most likely their legal staff justifying their own paycheck).
That's not surprising - it is after all how the status quo is perpetuated, and how attorneys gatekeep access to the legal system (thus undermining equal protection). It's just not right, in the sense of morality or even correctness.
[0] http://www.law.harvard.edu/programs/olin_center/fellows_pape...
They also know that any award they might receive will be smaller, and that if they do not win the case, the process will be costly and without appeal.
If the win rates remain unchanged after filtering out most of the consumer/employee complainants who don't have a slam dunk case, that is likely because there is systemic bias.
People make the mistake of assuming that the advantage for companies has to be in the trial results, when the fact is that there's plenty of advantage of paying claimants at a higher rate as long as you're getting it done faster with fewer billable hours to your attorneys.
Winning isn't actually binary. A trivial example is an award of $1 to the consumer, technically a win to the consumer, but clearly a loss.
The far more meaningful statistic would be the magnitude of the awards, especially as compared to awards by courts.
I suspect mindslight's argument may well be supported by the statistics showing a reduction in costs to big firms at the hands of arbitrators, though I admit that's just speculation.
Also, you mentioned consumers. What about employees versus employers, tiny business versus large business, or other large power disparities.
Based on professional observation, consumers/customers (meaning individuals) generally win arbitration cases against businesses. Employees tend to lose. Haven't seen enough B2B arbitration cases to comment on any sort of pattern.