It is insane that the rule of law can be so easily circumvented by something as simple as an EULA and that law makers are totally ambivalent about essentially losing their power.
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 "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.