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Comment by cornholio | Hacker News Reader

He lost because of a forced arbitration clause. This massive privatization of justice where any boilerplate service or product now comes with forced arbitration is making my blood boil.

The justice system should always be an option when arbitration fails, and arbitration should take no more than a reasonable time to fail (say, two weeks for this $5000 amount). The whole point of a small claims court is to handle such cases, not offload them to a dodgy corporate lawyer masquerading as a judge.

If the public service of justice is slow and expensive, we need to fix the public service, not replace it with a free market simulacrum. That's always the case with non marketable but essential public goods.

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I'm more disturbed by the parts of the article which say that he never agreed to a forced arbitration clause in the first place because it wasn't in the ToS when he paid, but the judge decided to go with the later ToS anyway:

> According to Lord, the terms of service when he made the initial pledge aren’t the same terms of service they are today. The original terms of service, according to RSI’s own records, make no mention of arbitration before February 2015. “These Terms of Service (TOS) do not affect any transactions made before its effective date,” RSI’s terms site said. “All prior transactions are governed by the TOS in effect on the date of such transactions.”

> Lord came to court prepared. He had printed out multiple versions of the terms of service, all records of communication with RSI, and a long document recording the 77 promises RSI hasn’t fulfilled in a timely fashion, including citations showing where and when RSI made those promises. But the case never got that far. He said RSI’s representatives understood that Lord’s pledges weren’t covered by the arbitration clause, and he offered to settle, again, for $3,800. They declined.

> According to Lord, when RSI’s representatives stood before the judge, they tried to argue the arbitration clause of their TOS. “Right off the bat, they assert the arbitration clause applied to everything, even though it plainly didn't,” Lord said. “I had to give the judge a copy of the first terms of services that clearly show that the arbitration clause was not there for the first few transactions.”

> ...According to Lord, the judge decided to apply the current TOS to all of the transactions in dispute. “He said he didn’t want two rulings floating out there,” Lord said. He may have lost this case, but he’s not done fighting. “I’m going to pursue it further. I’m not sure in what direction. I’m going to be speaking with a couple of different attorneys to evaluate my options.”

I mean... what? So even if you do exercise your choice as a consumer to avoid a forced-arbitration clause, companies can simply add it to their ToSes later on and retroactively make it apply to all interactions ever with the company?

This is especially important, and I don't see anyone else here (at the moment of posting this) calling this out. This is a disastrous precedent to set for consumers, because it means that even though you are agreeing to terms on the date of the sale, those same terms of the sale can be changed on a moments notice and still affect you, without your knowledge or consent. It's a shame that he has to keep fighting this, but I would assume (edit: I should say, I really, really hope) that this decision will eventually be overturned.

In other words if ToS can be changed retroactively, it's a wildcard agreement. Is there even a point in reading it?

Frankly that should make it entirely unenforceable. I’m very confused by the judges choice here, other than “it’s too hard and it’s easier to apply it here” which is a pretty crappy standard.

The simple solution is we need to ban all ToSs and EULAs. Make it a crime to try to enforce them on users, one that results in mandatory prison time (else companies will still use them to scare consumers, same as the warranty void if removed stickers).

We need a library of standard contract terms (so that every time you buy a thing you don't need to read a new contract, and to prevent shafting either side on the deals).

We also need those contracts to be much simpler. A single page of large font in language simple enough for a grade school graduate to understand what's supposed to happen.

But that would be s-s-socialism!!

EULAs are already not legal in Europe, so they're halfway there. You could always move there!

Where does that come from?

Yes, a few rights are better protected then in the US (at least if you haven't written the EULA in the right way), but I'm pretty sure they are generally legal and enforced.

He made some purchases on the old ToS and some on the newer ToS. So he did agree to forced arbitration on the bulk of his transactions. That's not saying that the first transactions should be grouped in (or that forced arbitration should ever happen) but this isn't just a company changing the ToS later without him ever agreeing.

1.Sell some products where price is mentioned in ToS.

2.Change price.

3.Sell some more products.

4.Send lawyers to collect diff on product sold in [1].

The question is, was he made aware, that his previous agreement will be changed when he was giving some more money?

>The question is, was he made aware, that his previous agreement will be changed when he was giving some more money?

Any new pledge could easily have a little tickbox "I've read and understood the terms & conditions", I'm not sure if Kickstarter has one but I've seen such boxes pop up everywhere.

You have to agree to the retroactivity and the new changes. The argument here is that he did when he made a ton of new pledges under the new agreement.

That's not true, because the new TOS plainly states that it does not apply to transactions made before the new TOS went into effect.

Even if the judiciary comes to its senses about the earlier purchaces, it's still a bait-and-switch for the later purchases. They can't claim that these were commodity purchases. Having spent a sum on one game, the next decision about where to spend on games is not a symmetric one.

That precedent was already established with Credit companies.

Thing is, small claims court doesn't set precedent generally, it is purely for cheaply and quickly resolving small dollar disputes without the need to hire a lawyer and pay significant court and filing fees.

The other side of this is small claims cases aren't going to get a thorough review like they would traditionally, thus some cases have the wrong ruling made. Since the claim was dismissed without prejudice, it could be refiled iirc.

They claim that he’s played the game so wouldn’t it be possible that he was presented with the new TOS before playing and agreed to that?

I have to wonder how companies can offer any kind of reasonable proof that it was an adult user who clicked through clickwrap, and not a wandering cat or a curious child.

If there is some degree of proof that he was involved in the transaction (e.g. credit card payments), if agreeing to the terms was a precondition it's unlikely enough that a wandering cat or a curious child clicked the "accept" button for there to be no reasonable doubt (unless he proves otherwise).

By the way, the hypothetic wandering cat or curious child that were to do so would risk of being liable of perjury :|

Read the actual case, not the review of it. I suspect the judge is relying upon the fact that the money was not paid in one lump sum. It is reasonable to believe that later payment constituted an acceptance of those new agreements, that they should apply to past monies too.

> that they should apply to past monies too

That's not reasonable

Yes. That's what it means. Your contract is meaningless against a corporation when they can change the terms of the agreement and force you outside of a court of law into a monkey court of arbitration.

The courts are for the wealthy, not for the plebiscite. This is what this ruling shows.

FWIW, a plebiscite is a yes/no popular vote of the whole population, not the population itself. Also, totally agreed.

He almost certainly meant plebeian, but his intention is clear and his point incontrovertible.

When you make a new purchase, you agree to the updated terms of service. This is pretty standard practice. (Steam makes you press a renewed terms of service agreement on every purchase, for example.) When you agree to updated terms, it generally replaces your prior agreement with a company. Had he not agreed to the new terms, his account and the purchases tied to it would still be under the old terms.

The whole EULA/TOS nonsense is crazy in general, but RSI isn't doing anything unusual here, and I'm not surprised this is how a judge took it.

The idea that someone could make 61 different purchases over a span of years, and then go back and think that they are entitled to refunds for all of them is a little crazy. And while the game isn't done, it is playable, and he did spend a significant amount of time playing it. It's unfortunate the game isn't developed the way he likes, but that is again, not an RSI-specific problem.

Right, but like I said earlier (and I think the source of general confusion) is that the article doesn't seem to indicate that's what the attorney's asserted. Like, if they'd said

>"Yes your honor, this did not apply at the time of pledge, but we updated the TOS, and he specifically agreed to updated TOS as part of his playing the beta test and here is the timestamp when he did so through his account."

well, that'd still be plenty good reason to discuss how the modern practices of EULAs and TOS clearly circumvent the spirit of contract law, but it wouldn't be a new practice at all either. And it seems like it'd be a pretty straightforward, slam dunk thing to say too.

The article though doesn't make it sound like that was the argument or came up. Which might be because we're getting it 2nd or 3rd hand, so we shouldn't necessarily jump to conclusions. But if the judge arbitrarily decided it applied retroactively rather then "it applies because he agreed it would at a later date" that'd absolutely be pretty scary.

> Which might be because we're getting it 2nd or 3rd hand, so we shouldn't necessarily jump to conclusions.

Yeah, as a Star Citizen backer (at an extremely modest level) I think that it just wasn't spelled out in the article. There was a LOT of hubub in the community when they added this new clause to the TOS, because you had to accept it to continue playing the alpha, which in turn meant that you could never get a refund.

Now I do agree that it would be very nice to see that the judge confirmed that the user actually went through with this agreement personally and that his acceptance was not just implied by the fact that the change was made a ways back in the release cycle.

Laws and contracts cannot be retroactive. A new TOS can force you to cede rights from that point onward. All past purchase are covered by contracts in force at the time they were made.

>Laws and contracts cannot be retroactive

Could you expand upon this a bit? In the US bills of attainder and ex post facto laws were clearly banned for both the Federal and State government from the founding of the country, though I remember reading that despite statements from the founders SCOTUS has been shakier on applying it to civil vs criminal law.

But it's not clear to me how that relates to purely private contracts, unless there is something in California regulating it? Further to your own point:

>A new TOS can force you to cede rights from that point onward.

It seems like that could cover this just fine couldn't it? Ie., two parties could agree that regardless of past or ongoing legal interactions, any future new legal interactions could be governed under different rules. I'm not sure that'd be "retroactive", it doesn't govern anything undertaken under the previous agreement, it modifies it going forward. Are you saying that contracts may never be modified from their original form? That doesn't jive at all with my (admittedly non-lawyer) understanding. It'd be against all sorts of bankruptcy proceedings and private settlements for example, since those often involve modifying previously agreed terms of previously engaged in financial exchanges.

Granted this all puts aside questions of adhesion and whether he even did agree to new TOS at all of course. But assuming during his ongoing play he was presented with a new TOS, agreed to it, and then at a later date filed suit, it doesn't seem novel at least (even if we think certain rights should not be contractable) that their legal interactions after the agreement date would be governed by the new TOS.

> Laws and contracts cannot be retroactive.

In the US, both laws (other than laws criminalizing conduct or increasing punishment for a crime, where the prohibition on ex post facto laws applies) and contracts can be, and sometimes are, retroactive.

> The idea that someone could make 61 different purchases over a span of years, and then go back and think that they are entitled to refunds for all of them is a little crazy.

There is an important distinction to be made.

I agree that he should not be entitled to change his mind about wanting a refund, years down the line.

But a corporation should not be entitled to unilaterally declare itself a sovereign entity, where it becomes both the defendant and the judge in lawsuits brought against it!

So sure, right verdict, but based on really terrible legal reasoning that needs to be overturned.

> I agree that he should not be entitled to change his mind about wanting a refund, years down the line.

That's not a refund years after one received a product, it's years after he was promised a product that he has not yet received!

The fact that they gave him prototypes of the product in the meanwhile has little relevance (altough if those "prototypes" were explicitly mentioned as part of what you would get in exchange of the funding, they could be regarded as a partial delivery and their assessed value ought to be discounted from the refund).

But I really don't even know the Kickstarter terms, I'm just speculating...

The only thing to note there is the "according to Lord" part. While I have no reason to doubt him, it seems so counter-intuitive for the judge to make that decision that we should probably get an additional source.

Which is followed by "The original terms of service, according to RSI’s own records, make no mention of arbitration before February 2015".

The author is making some confusing word choices.

According to their website the ToS issued at 08 29, 2013, already contained the arbitration, and only the version issued at 10 10, 2012 is missing it.

https://robertsspaceindustries.com/tos

They can retroactively change anything on their website. Of course, the same goes for the other party.

Archive.org has a copy from the 2013 terms of service: https://web.archive.org/web/20131017050205/https://robertssp...

It has an arbitration clause.

Also, are these statements legal in America?

* "YOU UNDERSTAND AND HEREBY AGREE THAT YOU HEREBY WAIVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL."

* "To the fullest extent permitted by law, (1) no arbitration shall be joined with any other; (2) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures"

* "Any arbitration shall be initiated in the County of Los Angeles, State of California, United States of America. Any Dispute not subject to arbitration, or where no election to arbitrate has been made, shall be decided by a court of competent jurisdiction within the County of Los Angeles, State of California, United States of America, and you and RSI agree to submit to the personal jurisdiction of that court."

So waiving your right to the judicial system, waiving your right to enter into a class action suit, and enforcing a particular jurisdiction location? Seems very anti-consumer and not fair at all.

This is a very dangerous precedent. Lord should push this to appeals and maybe call the ACLU.

It was a small claims case, so there is likely no precedent. Your are right though, he should appeal. In my state, if a small claims case is appealed, it is always heard fresh ("de novo")

Revising contracts with binding arbitration clauses has some recent precedent in the Supreme Court of the United States. Epic Systems Corp. (not the game company) sent employees a memo which can be paraphrased as, “you can no longer class action us. If you keep coming to work, you show you agree to this change.”

https://www.supremecourt.gov/opinions/17pdf/16-285_q8l1.pdf

I think they were saying that because it was small claims court, this particular case didn't set any precedent.

It sounds like a case of a small claims judge ruling in favor of a defendant simply because the defendant had a lawyer, and the plaintiff did not. Of course, there may be more to this story, but in general, lawyers almost always get preferential treatment to non-lawyers in court. That is sad state of affairs.

The plaintiff can still appeal the case though, and stands a good chance of having the case heard, if the facts are as presented.

Let me try to find the actual rulings for y'all and post them, so we aren't forced to rely on this kind of second hand info :)

So being a small claims court case, there is no written opinion.

However, here's the other side to this particular claim. " the vast majority of Lord's 61 pledges came after the arbitration clause was added and that Lord accepted the new terms of service when he added additional funds to his initial pledge. "

My guess, if he was to appeal, the end result would be a ruling saying "The stuff done before the arbitration clause get adjudicated, the stuff after goes to arbitration"

This is what has happened in the past. But in general, you are allowed to give contracts retroactive effect if both parties agree and it's explicit.

This would probably leave Lord with a claim for basically nothing.

> but the judge decided to go with the later ToS anyway:

You're forgetting that judges and lawyers are the ones who moonlight as paid arbitrators. They're only acting in their own best interests.

> I'm more disturbed by the parts of the article which say that he never agreed to a forced arbitration clause in the first place because it wasn't in the ToS when he paid, but the judge decided to go with the later ToS anyway:

According to several other articles I read this was argued but lost due to the majority of contributed money came _after_ the ToS update which required him accepting the new ToS.

It's still crappy though.

I'm glad you brought this up; my head spun when I read that too. I'm hoping this is a error on the part of the article author or source.

Are there records created for small claims cases?

RSI isn't even the name of a real company. It's a fictional company in SC. Cloud Imperium Games, CIG, is the actual company. The article in general is missing a lot of detail.

I can't get phone or Internet in my area without some form of forced arbitration.....if I don't give up my rights to the court system for those services, I just don't get them.

There is no option to simply not participate, it is absurd.

Have you tried asking your parents for an itsy-bitsy teensy-weensy million-dollar loan so you can found your own telecom?

A.K.A The Kardashian method to becoming self made.

Not asking my parents....but I have thought of it as a pie in the sky thing...

> If the public service of justice is slow and expensive, we need to fix the public service, not replace it with a free market simulacrum.

Completely agreed. Prisons are another example of an essential public service that should never be privatized or outsourced.

Healthcare, too

That’s a blanket statement that leaves too much wiggle-room. The UK’s NHS, for example, is partly private insofar as GPs and many other doctors work for themselves and contract themselves out to the NHS instead of being NHS employees. Correct me if I’m wrong, but a group of doctors could form an organization that forces its patients into binding arbitration for disputes while still being contracted to the NHS. It would result in a backlash of public opinion - but still possible.

The NHS also has other private components: it used to run its own logistics division which was scrapped in recent years and replaced with services provided by couriers like DHL.

> Correct me if I’m wrong, but a group of doctors could form an organization that forces its patients into binding arbitration for disputes while still being contracted to the NHS.

Could they? I thought the doctor's contract is with the NHS on standard government terms, and the patients are dealing with the NHS terms, the doctors have no direct contract with the patients or ability to impose legal terms on the patients differing from the NHS terms.

Also European consumer protection laws make it very hard to enforce binding arbitration clauses in contracts.

I wish it were this way in the US. Way to nullify habeas corpus... :-(

Transportation. Communication. Food. See? I can do it too. The idea of non-privatizing things has to pass tests other than just "Everyone needs it."

> Transportation. Communication. Food. See? I can do it too. The idea of non-privatizing things has to pass tests other than just "Everyone needs it."

Does it? Why? I'm 100% for all of the items you mentioned -- public transportation, public communication, and public food. Arguably we pay for crappier versions of all of those already (Busses, Lifeline Program, SNAP and Bridges or your state's equivalent)

You can be for "public services that should never be privatized or outsourced", and still allow private services to exist too. That's not a conflict in any way.

(I'm aware of the letter ban) but a public USPS for package delivery, doesn't prevent FedEx from also delivering packages too. A public water utility doesn't prevent Nestle from also selling bottled water everywhere. Public elementary schools hasn't prevented private/religious schools from also existing in every state. PBS / BBC hasn't prevented NBC / ABC / CBS / Sky from existing. You can be pro "public utilities for things everyone needs, ban privatization of public services" and that does not have to hurt any private companies in any way.

I would have zero problem with those things being provided at the basic levels to everyone. No you aren't going to get t-bones, but some bread, eggs, potatoes, and shit? What is the problem there? They are already heavily subsidized industries to provide stability despite whatever else is happening in the markets, we aren't going to just stop growing them unless we are all dead.

It's an opinion, man. How do I see if it passes this test without expressing it?

Government is and has always been about law -- creating law, executing law, interpreting law, and enforcing law. Healthcare doesn't have a natural, direct relationship to law like prisons and courts do.

> Government is and has always been about law

Government has always been about the legitimatized application of force; the use of law as one of the key components of the legitimization of force is very old, but not essential to the concept government (it's essential to modern, and even many older, norms or models of government, though.)

The principle of the rule of law says that all parties, even the government itself, are subject to the law. This would imply that any application of force on the government's part must only be done in the service of the law.

This is how government ought to be, and has been at least several times in the last 1000 years. The Magna Carta is famous for first codifying the rule of law principle.

If the principle of rule of law meant that a democratically elected government cannot use its powers to take care of its citizens, it would simply be a bad principle.

A democratically elected legislature's job is to write the will of the people into law.

So if the people's will is guaranteed basic medical services available to all, I don't see what the problem there is.

There needs to be a distinction between fundamental government functions (those that exist to establish the rule of law) and those that were created by law.

It's the fundamental government functions that should never be outsourced.

(If the people's will is that government take care of other matters, no problem. They can choose either way, provided the resulting laws are not unconstitutional.)

> If the public service of justice is slow and expensive, we need to fix the public service,

The public service (small claims court) was present and used. He just didn't get the result he wanted. It's not like the "public service of justice" was evaded. He got a hearing. The judge (a real judge!) said the arbitration clause was enforceable.

So he lost. In court. Having exercised his constitutional right to petition his government for redress of grievances.

I mean, look: I get that arbitration clauses can be unfair. But that's not an indictment of arbitration, it's an indictment of unfair contracts. For every case like this that makes your blood boil there's one that throws out an arbitration clause that wasn't appropriate.

The system works, basically. It just doesn't get this guy his $4500 back because he made a stupid bet on Kickstarter.

No, he did not get his constitutional right to petition his government for redress. He was denied this because a company added a clause forcing people to go into the private justice system. A clause that never, ever, ever should be enforceable, because it is entirely unconscionable.

The system did NOT work.

Yes he did.

He was denied his right to redress because the judge thought the case wasn't worth enough to be worth his time, wrote a very dismissive ruling and then hoped it wouldn't be appealed so his shitty ruling wouldn't be torn apart.

This isn't a 'the sky is falling' situation. This is a judge cutting a corner to get to cases he views as more important.

No. The judge announced that courts of law do not apply, only arbitration psuedocourts apply.

Arbitration is no longer thrown out almost ever, because of ATT Mobility LLC v. Concepcion. An unconscionable contract with arbitration is not an exception to arbitration anymore and state laws no longer apply to arbitration compelled agreements. The arbiter will decide what, if any, laws to follow. The arbiter will decide if the contract is fair. The arbiter will decide if they even want to rule based on the dispute at hand or something arbitrary.

You are behind the times on the sheer power of mandatory binding arbitration.

> because of ATT Mobility LLC v. Concepcion

Then perhaps your ire should be directed at the politicians responsible for appointing judges with more acceptable leanings on civil liberty issues like this, and not at some random local magistrate who failed to rule for the gambling rando who lost $4500 on kickstarter.

I get what you're saying. This isn't a good example of the problem, nor a productive location to whine about it.

You have a say in who gets to arbitrate your case. Are arbitration tribunals more biased than the regular courts?

Also, "An unconscionable contract with arbitration is not an exception to arbitration anymore" then isn't the problem deceptive business conduct? Can't people form a class and sue for that? (Or is that a process only the FTC can initiate?)

This is a disturbing precedent and decision. Forced arbitration is a huge flag that severely dilutes consumer rights and makes a mockery of consumers and markets.

This kind of precedent should not be allowed to stand but there is only so much time an individual who has to make a living can devote to these kind of issues.

It's not like a corporation that has legal staff on board and can afford to litigate for years on end without any consequences for anyone involved, and if there is a fine at the end it gets paid.

But arbitration didn't fail here. He never tried it in the first place.

Arguably he shouldn't have had to, since the arbitration clause appeared in the Terms of Service after he made his pledge. I have my own opinions about arbitration but that's neither here nor there when what you agreed to did not dictate that you must resolve disputes through arbitration.

But he has used the service since, making more pledges to other companies. Part of continuing to use kickstarter is to to accept the new TOS when they come out.

If he made one pledge, and then never used or logged into kickstarter and agreed to a new TOS then he would have a case.

According to the article, he made a some of his pledges after the change to the Terms of Service.

I can imagine that if they tried to get a refund somewhat close to the change, a judge could be convinced to allow the refund under the old ToS.

If the public service of justice is slow and expensive, we need to fix the public service, not replace it with a free market simulacrum.

The argument is that the justice system is slow and expensive because it is overloaded with cases that don't really belong in the justice system in the first place. Which is not a radical idea; e.g. only some cases merit the attention of a district court, and fewer still merit the SCOTUS.

You can see the "overloading" perspective when you look at the asylum hearing backlog. The demand outstrips the judiciary's ability to run fair hearings practically to the point of absurdity.

If arbitration really is a better solution, then people will choose to go that route themselves, instead of being forced into it by a company trying to get more favorable results.

> If the public service of justice is slow and expensive

Is small claims court slow and expensive? Not to my knowledge.

It's expensive for businesses because they tend to find in favour of the consumer, whereas with forced arbitration the business can pick the most biased arbitrator to rule in their favour.

Well, okay. Right. I agree. I just don't want people reinforcing the meme that "justice is always slow and expensive and that's why businesses want arbitration" when the real reason is "courts are too fair and that's why businesses want arbitration". The accessibility, fairness, speed and low cost of small claims courts to poor individual litigants is a bug, not a feature, from the perspective of the US's larger corporations.

    <comment class='devils-advocate'/>

From what it seems like, most large companies tend to use the same few arbitration firms. JAMS and AAA come up often in the contracts I've read. How often does this "arbitrator shopping" actually happen? It's a complaint I hear often, but little in the way of data to support it.

I have seen data to suggest that arbitrators rule often in the favor of the companies, but that could be a result of more people raising bullshit claims since it's significantly easier to do so.

>om what it seems like, most large companies tend to use the same few arbitration firms

Maybe the other arbitrators went out of business because they ruled on the consumer side.

See: survivorship bias.

I'd love to see the data either way. "Arbitration is popular because it always screws the customer!" is a wonderful emotionally-evocative talking point, but that seems way too simplistic and pithy for me.

Arbitrators, like jurors, tend to split the baby if there is a halfway decent rationalization for doing so.

Any court forces an adversarial resolution: the parts have failed to come to an understanding so they are investing in a legal battle from which the loser will come out bruised, having wasted money, time, prestige etc. A strongly negative-sum game.

The ease of which you can go to court can motivate parties to use it as a strategic threat even if they feel they don't have a particularly strong case, and the openness of the court system can make that small chance of success a strong threat against a public person or company.

So arbitration, by definition, can find a mutually acceptable solution with a zero sum, as opposed to the negative sum of a legal war. Society stands to gain if arbitration works - but not in cases such as these, were forced arbitration is employed as a stopgap against any and all claims.

It is if you have to pay a lawyer to represent you. Between responding and showing up in court it's probably several thousand dollars in billable hours.

You can't have a attorney represent you in small claim court.

That depends on the state. Even if it's not a lawyer, you still have to send someone. Between salary costs and travel it's still in the thousands.

> He lost because of a forced arbitration clause.

Just to be clear, that doesn't mean he wouldn't have lost otherwise, or that forced arbitration wouldn't have worked in his favor. If forced arbitration wasn't a consideration, he might still have lost.

Arbitration is a net loss for the human. The rulings are secret. The impersonal corporation knows which arbiters favor it and which do not, and can blacklist based on that. Arbiters only get work if they continue to rule for corporations. The corporation knows which arguments worked for it in the past with arbiters, but the judgements are secret and the human cannot research as a corporation can.

Arbitration is a biased loss for a human up against a corporation in mandatory binding arbitration via a contract of adhesion.

That's all beside the point.

No, that's all material to the point. It's the same type of thing that led to most IP cases being heard in a particular Circuit/District Court in Texas.

When you as the consumer have nil input into establishing an impartial venue, and the COMPANY has an ongoing business relationship with the Arbiter on which the Arbiter depends it completely undermines the integrity of the proceedings. It's like asking your Mother in Law to preside over divorce proceedings.

How is this so hard to understand?

If a company can force you into that regime, and has all the bargaining power in the transaction, you are not at the table as equals. You are cattle. You are meant to consume and remain silent. Any complaints will be ignored in the order they are received.

You can say that IDEALLY the Arbitration company runs arbitration for many other companies, so is an impartial body in this case. Losing this ONE business wouldn't hurt right?

Except their bills ARE PAID by your opponent. You don't bite the hand that feeds. It's why the public justice system "works". If arbitration is so effective, it should be integrated into the public justice system and funded accordingly. Otherwise, it's your Civil Rights being discarded by corporate contract lawyers.

> It's like asking your Mother in Law to preside over divorce proceedings.

That's a classic, I'll have to remember that.

> No, that's all material to the point.

No, it's not. The point being not whether arbitration is good or not, simply contesting the implication that the only reason lost because of a forced arbitration clause.

The only way you can disagree with that or argue it is to prove otherwise, which you can't.

No one is forcing you to use forced arbitration. You're not entitled to someone else's service. If you don't want to accept forced arbitration, then don't use their service.

What you're really saying is that you want to prevent me from offering a service on the condition that contract disputes are handled by alternative dispute resolution mechanisms.

This desire to impose restrictions on other people's free action is immoral, and doesn't become okay due to your anti-free-market ideology.

This is a rather naive position which ignores the information and power disparities. The average person doesn’t have time to review every contract for everything they use, nor is it clear why this should be unlike every other thing you buy simply because it involves software, and there are whole sectors where the only option is not to have e.g. mobile phone service.

It’s especially sad to see you trying to spin blocking someone’s ability to exercise their right to use the legal system as a pro-liberty move. At the least you can be honest and acknowledge that it’s about saving money.

What you're referring to is an entirely different issue, which is informed consent. If the contract is designed to get the user to quickly glance over it, and agree to unfair terms without understanding it, then yes it's unfair, and any properly functioning court system will void it.

But that's a separate issue from the possibility of including arbitration clauses in a contract, which simply expands the range of possible contracts two consenting parties can enter into.

You don’t expand options by removing them. Being forced to use a company’s appeals process is a distinct reduction in freedom from the status quo.

No options are being removed. The range of possible contracts that two consenting parties can enter into is larger when arbitration clauses are not illegal.

>>Being forced to use a company’s appeals process

No one is being "forced to use a company's appeals process". You choose to accept a company's offer, and agree to the terms, when you sign a contract with them. Given you're not entitled to use their service, and are free to not use it, you are not being forced into anything.

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