A new weapon in arbitration: sheer volume
nytimes.com
nytimes.com
Incidentally, the AAA rules have some useful provisions in consumer disputes. Either party can request to transfer the case to small claims court. At least in California, that's not only cheaper, small claims courts tend to be pro-plaintiff. You get to be heard in person in your own county by a real judge.
[1] https://www.adr.org/sites/default/files/Consumer_Rules_Web_0...
[1] https://library.nclc.org/where-defendant-requires-arbitratio...
A company could simply stick its fingers in its ears and yell "I can't hear your legal complaints!" and essentially get out of all responsibility. Thankfully, it sounds like this is not the case.
However, you would probably need to file your case separately in court and get it combined with other cases to form a new class action, or join or an existing class action, as the breach would only apply on a case-by-case basis.
When a company says "you can't come after us because we're already facing too many other similar claims", that's called bankruptcy proceedings.
I suppose the court fees would be prohibitive, unless you had a strong case and could make the defendant pay them. The math could work out for the right cases though. Back in the day, I remember a class action lawsuit over Philips CD burners that just resulted in something like a $200 coupon off a new Philips CD burner. Basically a useless piece of paper unless you wanted to give the company another $300, but if that could have been made into cash...
I was involved in a mass-arbitration last year. The NDA bars any details from being released for 2 years but in the meantime, we can say we reached "a resolution, not a settlement" in the dispute.
They rely on the appearance of fairness to enable corporations to use their services against consumers/employees. If they aren't careful there is a risk of the courts increasingly observing how tipped the scales of arbitration are.
The jurisprudence, to the limited extent I understand it, relies on the assertion that arbitration is fair. Upholding that believe is in the arbitrators interest.
This is misleading, neither America nor any other country has a justice system. Justice is often a goal of the legal system but it is not a direct attribute of the system.
So, buried in size 3 font on page 355 of a document included by reference in the 200 page TOS and that can be found at the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying "Beware of the Leopard" -- that one is to have read in full by legal counsel before spending $30/month on internet access?
Right.
I know that courts know about contracts of adhesion, but suggesting that there's anything mutual about them is absolutely grounds for a little prodding.
If you do end up in court, it's another $20k just for JAMS fees. Again, non-refundable, doesn't matter if you win or lose.
So if someone is trying to take you to arbitration over less than $20k, it really doesn't matter AT ALL if they are right or not, it makes sense to settle for whatever amount you can convince them to agree to.
You can kill a company with frivolous arbitrations, just by having enough people willing to file one. Doesn't matter if those people have been wronged.
If the company holds very infrequent general meetings and the owners can't schedule extra ones, then the managers are going to rule, irrespective of who "formally" governs the company.
It's like a people's democratic republic: even if the election is fair, the political bureau sets the rules 99% of the time and the congress of deputies only meets once a year - and soon enough the elections end up no longer being fair.
https://en.m.wikipedia.org/wiki/Principal%E2%80%93agent_prob...
Y Combinator’s TOS has an arbitration clause. [3] If you’ve created an account on HN, you’ve agreed to arbitration.
[1] https://stackoverflow.com/legal/terms-of-service/public
Ignore the arbitration clauses and talk to your lawyer.
Binding arbitration clauses in ToS are there primarily to make people think that they can't sue.
[1] https://blog.rongarret.info/2011/12/cosmo-and-me-part-3-how-...
[2] https://contract-law.laws.com/contract-law/meeting-of-the-mi...
1. Binding Arbitration is enforceable.
2. Binding Arbitration clauses fall under contract law.
3. By virtue of point 2, Binding Arbitration clauses require a Meeting of the Minds in order to be valid and enforceable.
I think you're attacking a straw man.
They aren't dubious, they aren't ruled unconscionable. If you sign up for some service and agree to the terms of service that include arbitration, you're going to arbitration and nothing else. Yes, your click on "I agree to the TOS" is binding on you, no, no one cares that you were closing your eyes or crossing your fingers or whatever. Your use of the service shows your agreement.
No, that is not necessarily true. If I put in my ToS that by using my site you agree to (say) my installing malware on your machine that will allow me to go into your bank account and take as much money as I want, that will (almost certainly) not be enforceable.
>Yes, your click on "I agree to the TOS" is binding on you
There is no such button in this particular case.
>no, no one cares that you were closing your eyes or crossing your fingers or whatever.
This is a straw man. Nobody is claiming this.
>Your use of the service shows your agreement.
That very much depends.
Is it similar to criminal defense or PI where an attorney seeks out the case and will then take a large fee if they win?
The concept of class-action lawsuits isn’t as relevant here, and there is no such concept as “punitive damages”. The best you can hope for is a court order granting you whatever Igor is in dispute plus any actual damages.
Lawyers’ fees and court costs are also awarded to the winner by default, with a sliding scale for such fees based on the value in dispute. You can sometimes find a lawyer who will take your case if they are optimistic as to your chances, but of the cases I know, this mostly happens when the lawyer also has some ideological interest in it (say privacy or labor law).
There is insurance you can buy that will cover legal costs, but you will need to convince them of your chances in any litigation that you want to initiate (as opposed to being sued). There are also a number of non-profits that offer legal services for specific issues, typically in exchange for yearly fees: unions, tenants’ organisation, and even dog owners’ or RC airplane clubs.
So a mandatory arbitration clause can be written here, but you would fail to stop your customer from going to court if they disagree with the arbitration outcome.
Similar for things like excluding warranty, you cannot legally decrease consumer product warranty below 2 years in Europe. You would loose that case, because the courts have ruled that less then 2 years (or less than the reasonably expected economic life of the product if that's longer) is unfavorable to the consumer and thus null.
Even more troubling is binding-arbitration and class-action waivers for employment. They suppress cases of systematic mistreatment and allow issues to be swept under the rug, even more so than they are already.
For instance, if you want to get insurance for a riding academy, they will want you to get all your riders to sign a contract that disclaims all liability, put up a big ugly sign about it, all that.
In most countries consumer arbitration is either heavily regulated, or non binding. In EU pre-dispute binding consumer arbitration clauses are considered unfair terms.
American Exceptionalism in Consumer Arbitration https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2265556
As an example there are clauses written into ToS which don't allow refunds on digital purchases. These work fine in the US but are illegal in countries with stronger consumer protections like Australia. US companies do still have to obey local laws - at least when it comes to the sale of faulty goods.
I would suspect (not a lawyer) that the main issue will be jurisdiction.
As a consumer in the EU, jurisdiction in matters with commercial entities is the consumer’s place of residence. But HN/YC isn’t in the EU, and I don’t think there are any legal agreements b/w the EU and USA that are relevant here. Free trade agreements tend to include such issues, but TTIP’s well-known fate means this is left to the parties to specify in any contract.
Then, there’s a difference b/w HN and YC. HN’s relationship to users is that of a commercial entity to consumers. But YC investing in your startup isn’t. Consumer protections would not apply even if YC were in the EU.
To summarize: yes, the arbitration clause, at least of YC, would apply to the same extend as if you were a US citizen.
If you could pull that part off, I think you could take YC to court in Germany, and even achieve a favorable judgement. However, I don't see any way how you could enforce the outcome, except if YC has assets in Germany.
Arbitration can't completely remove access to the courts -- it can (and does) make it harder to get there. Case law for this sort of thing is always evolving, and so is statutory law. It's entirely possible for the courts to modify arbitration sufficiently to make the playing field more even.
Thats is not true. I just tried creating an account, there isnt even even a mention of any terms of service.
> Welcome to the Y Combinator website (including all subdomains, the “Site”)
> This Site provides, among other things... forums for discussions about topics relevant to startups
> THESE TERMS OF USE CONTAIN AN ARBITRATION AGREEMENT, WHICH WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION.
It’s odd that there isn’t any mention of the TOS upon registration. Does this mean they could potentially be non-enforceable?
EDIT: Did some random googling about enforceability of terms of service. In a case discussed here[1] the ToS were deemed unenforceable based upon in part the lack of assent to the terms.
> [A]cceptance need not be express, but where it is not, there must be evidence that the offeree knew or should have known of the terms and understood that acceptance of the benefit would be construed by the offeror as an agreement to be bound. . .That is not the case here. The plaintiffs were never put on inquiry notice of the arbitration provision, and their continued credit-card payments, which were auto-debited from their credit cards, were too passive for any reasonable fact-finder to conclude that they manifested a subjective understanding of the existence of the arbitration and other emailed provisions and an intent to be bound by them in exchange for the continued benefits [membership] offered.
In the HN case I would argue that there is no evidence that anyone creating a HN account knows or can be expected to know that there are ToS related to that account creation that they are agreeing to, as there is no mention of them in the complete registration process.
[1] - https://www.forbes.com/sites/oliverherzfeld/2013/01/22/are-w...
But I'm worried companies will be able to respond in a way that neutralizes it -- tweaking arbitration terms somehow. I hope not, though. It is absolutely necessary that we hold companies accountable for mass bad behavior, no matter if it's with their customers or employees.
Where the arbitrations haven't begun yet, there's certainly some scope for attempting to neutralize this, by changing provider or terms. Interestingly, there's a potential conflict-of-interest brewing [1] around whether DoorDash's lawyers were so tightly involved in the writing of the CPR's rules, that the CPR sought their approval before publishing them [2]...
If that is the case, things could start to get quite interesting indeed, particularly for CPR, who are not looking in a particularly good light after discovery in the case.
> The documents in the case were unsealed on Wednesday, revealing that the defendants were so involved in the protocol that CPR would not publish it until DoorDash and its lawyers gave the go ahead, including a sign off on the fee structure by DoorDash’s head of litigation, Gregg Farano. In his written approval of the Protocol in an Oct. 31 email to Waxman, Farano asked that CPR let him know when the new rules were published “so that we may link to it in our terms and conditions.”
Alsup certainly seems to think there's something worth the public knowing about here [3]:
> Judge Alsup also said the public deserves to see the CPR emails, since the material “would be useful to the public in evaluating the true extent to which (CPR) is impartial.”
[1] https://www.law.com/therecorder/2019/12/20/gibson-dunn-doord...
[2] https://prospect.org/labor/doordash-company-arbitration-stor...
[3] https://www.reuters.com/article/legal-us-otc-mass-arbi-lawsu...
> The International Institute for Conflict Prevention & Resolution, or C.P.R., was willing to allow DoorDash to arbitrate “test cases” and avoid having to pay the fees all at once. C.P.R. also took feedback from Gibson Dunn on the proposed new rules, though it did not consult with the dashers’ lawyers.
> > The International Institute for Conflict Prevention & Resolution, or C.P.R., was willing to allow DoorDash to arbitrate “test cases” and avoid having to pay the fees all at once. C.P.R. also took feedback from Gibson Dunn on the proposed new rules, though it did not consult with the dashers’ lawyers.
Very much so! And this seems to be why Alsup wanted the discovery documents made public, so people could draw their own conclusions on the lack of independence of the CPR.
I must confess I don't like the whole model of arbitration, as it feels full of perverse incentives to begin with - an arbitrator gets selected, so one that finds against the big company too often won't be getting much work!
Even without this tweak, if a company saw a huge increase in "cookie cutter" arbitration suits they could probably just not respond to these suits and hope that the majority of complainants aren't willing to go to court. A cookie cutter suit likely indicates a low-effort action, not likely to be followed up with a lawsuit. How many of the 6,000 DoorDash claims would have gone to court if DD just didn't respond? At $1,500 per claim even if dozens or a couple hundred went to court DoorDash may have still have saved money.
If you have a dispute with a company, and are bound by an arbitration clause, it seems like you have a $1,500 hammer to hit them with? (Assuming your agreement states that the company will front the fees).
What happens if the arbitrator decides the case against you? Do you owe that fee? Does this vary from one contract to another?
I'm not entirely sure they can agree to not front the fees without also potentially voiding arbitration. While money does mean a lot in court, there's a very strong sentiment that it should not be a barrier to entry. There's at least one case that went to appears where, when the plaintiff ran out of money and arbitration was canceled, the case was permitted into court:
https://cdn.ca9.uscourts.gov/datastore/opinions/2016/06/15/1...
* I'm not sure if you could pull a Thiel/Hulk Hogan thing to bankroll an arbitration swarm but if so, this could definitely get ugly for companies that misbehave.
It doesn't just have to be companies that misbehave. If you don't like your competitor, maybe you'll sponsor that $250 per user to allow their userbase to throw arbitrations at them.
You can burn your competitor down at a ratio of at least 1:5 if you do something like this. If you take some fees for every case you win or that ends up settling, the ratio will be far better than 1:5
The arbitration system as it stands is a tool that allows anyone with enough money and intention to smite any company by pulling together unhappy users and paying arbitration fees for them.
Arbitration is a tool, but it's totally unfair to say it's used by anyone else than the company choosing it.
They can award fees, yes. Usually depends on a myriad of factors, much the same as the court uses when determining sanctions and fees.
Some arbitrators make over $1,000 per hour.
The agreement specifies the arbitrator you use. In this case, the fees are set by the arbitration company, not by any contract between the parties to the dispute. It's not a matter of "who picks up the fees"; there's one fee for the company and a different, much smaller fee for the complainant.
(Of course you could have a contract specify that one or the other party was responsible for the other's arbitration costs, but that's not happening here and seems unlikely in other areas.)
I believe the amount varies state to state, but is generally over $1000
DoorDash gets to try a few cases with this company to see if they like the results. That couldn't possibly create a conflict of interest.
> DoorDash balked, arguing in court that it couldn’t be sure that all of the claimants were legitimate dashers. The American Arbitration Association said the company had to pay anyway. It refused, and the claims were essentially dead.
How is that legal for binding arbitration? Didn't both sides agree that disputes will be resolved by arbitration?
It doesn’t appear to be legal. But that would require a court order to enforce the arbitrator’s ruling. Benefit here being, there can be excess damages found against DoorDash if they’re acting in bad faith.
Seems like this is pervasive enough to affect pretty much everyone. Or am I misunderstanding something here ?
[1]https://www.theguardian.com/us-news/2016/dec/09/trump-and-cl...
[2] https://www.thedailybeast.com/wheres-mike-bloomberg-billiona...
[3] https://www.forbes.com/sites/michelatindera/2020/02/01/billi...
I'm not saying these aren't valid and serious issues. Just that they're not day-to-day matters in the same way that healthcare, taxes, gas prices, or housing costs are. They're the type of issues that nobody thinks about until it bites them one day.
Like you said, it's probably not what the majority of people are experiencing.
A union is designed to protect your rights, forced arbitration is designed to limit your rights.
Arbitration clauses are so ubiquitous that it would be almost impossible to operate in modern society while refusing to sign them.
Arbitration is ubiquitous because even at the cost of hundreds of dollars per hour arbitration is a lot cheaper and faster than going to court. And if people don't like the results of arbitration, there's still the option of claiming impartial arbitration and filing a lawsuit anyway. Companies that have arbitration agreements still get sued.
Response to techsupporter, HN isn't letting me make a new comment:
> This is not accurate. Almost every mandatory binding arbitration clause of substance includes wording that the arbitrator's decision is final and cannot be appealed.
There is nothing to stop you from appealing anyway. The fact that you're trying to seek an outcome different from the result of private arbitration does increase the chances that the courts will decide to reject your case. It onus on the plaintiff to prove that arbitration was not done correctly.
There are good observations to be made about the impartiality of arbiters - it's companies that are usually the ones paying for their services, and so it's not hard to image that this creates a conflict of interest. But a company that can force arbitration, and then use an arbiter that had agreed to dismiss all complaints is not correct - the kind of scenario you lay out is exactly the reason why you can sue even after agreeing to arbitration.
Talent guilds are generally the only unions that restrict their members from doing non-union work, and even the talent guilds have exceptions for lower-earning members.
This is not accurate. Almost every mandatory binding arbitration clause of substance includes wording that the arbitrator's decision is final and cannot be appealed. Also, the question of whether the arbitrator's ruling was fair and impartial--did you mean claiming "partial," or biased, arbitration?--is, much like the question of jurisdiction or ability to arbitrate, left to the arbitrator to decide under those same terms.
The law does not work like that because judges don’t work like that. There are rights you can’t sign away. No matter what the contract says non competes are not valid in California. You can’t agree to be someone’s slave if you can’t pay your debts and have the court enforce that.
Obviously there are limits, but if the arbitrators aren't open and blatant about their bias, I think you'd be hard pressed to find any remedy if you were wronged by a biased arbitrator.
The point of arbitration isn't to allow companies to engage illegal criminal conduct like slavery, it's to make them practically immune from civil court proceedings.
You’re right but that’s not a great example of the rights you give up on joining a union. The right to work non union jobs isn’t particularly valuable except to non members and non members and people just starting their career are not the union’s concern. They protect the interests of the average member, so people for whom it’s a career, who have some years of experience. Those don’t generally work crappy jobs unless there’s discrimination against them.
Giving up the right to negotiate your own compensation would be a huge deal for any professions or jobs with obvious large differences in productivity and many employers. So you only see that at the bottom end. No limits on top end compensation. The Screen Actors Guild doesn’t say with this many years experience you must get paid this much, they say no one can get paid less than this.
With a single employer compressing pay differentials is a lot easier so you get what the average member wants, security of tenure, seniority based pay and promotions. If you want to negotiate something different go find another employer.
My understanding is that arbitration is only a thing in the modern world because there is a law allowing it, and the law only allows it because of "activist judges" interpreting it, although of course we don't call them that.
Do you know how that works with the idea that by joining a union you are giving up your right to work non-union jobs?
I'm not trying to say that you are wrong, I just don't know enough to know if that was a special case or if there are certain circumstances where a union worker can or cannot work a non-union job.
In "modern _US_ society".
[1] https://berniesanders.com/issues/corporate-accountability-an...
> Seems like this is pervasive enough to affect pretty much everyone.
Sadly, it's one of those things that effects everyone but that they don't know about until it's too late.
[1] https://www.nytimes.com/2019/04/15/us/politics/pete-buttigie...
2. For the most part, the direct gains to consumers are small. Even if you get Door Dash to pay out two-thirds of its $9 mil., it's less than a thousand bucks per person. Pay a $250 filing fee, figure 1/3 fee for the lawyers, and you get $500 in an ideal case. That's nice for clients, but not life-changing. Indirectly, of course, there are large benefits.
3. Compared to one client's recovery, it looks like a windfall to lawyers. And most Americans would rather shoot themselves in the foot (metaphorically, at least) than help lawyers get rich.
(In fact, it's probably not all that profitable for the lawyers. It looks like low-margin work that only pays off for the firm if each lawyer tries to manage an ungodly number of cases.)
E.g. if you have a task to do for which you have to reveal secrets, how do you protect your moat without non-compete clauses if you hire employees or contractors? In other words, you need people who are allowed to sign away their rights. If you don't allow this as a default state, you have to hand out licenses to those who understand the issue.
Right now, you have the concept of Age of Majority [1]. We simply assume that everybody who is old enough is capable of understanding his rights. If you question this, you will have a funny presidential campaign where you ask people to vote for you because they are not competent enough. That said, how is the president the right person to change that law?
Ah! Gotta love judge Alsup. Back in SCO vs Novell, and in Oracle vs Google.
> ... in a hearing, Judge Alsup questioned whether the company and its lawyers really believed that.
> "Your law firm and all the defense law firms have tried for 30 years to keep plaintiffs out of court,” the judge told lawyers for Gibson Dunn late last year. “And so finally someone says, ‘OK, we’ll take you to arbitration,’ and suddenly it’s not in your interest anymore. Now you’re wiggling around, trying to find some way to squirm out of your agreement."
> "There is a lot of poetic justice here," the judge added.
I had to look this up -
»Scène à faire (French for "scene to be made" or "scene that must be done"; plural: scènes à faire) is a scene in a book or film which is almost obligatory for a genre of its type. In the U.S. it also refers to a principle in copyright law in which certain elements of a creative work are held to be not protected when they are mandated by or customary to the genre.«
https://hn.algolia.com/?dateRange=all&page=0&prefix=false&qu...
> Ha ha, you ask me do I know Haskell? Haskell is my middle name!
Goes to show the only "efficiencies" brought about by arbitration are discouraging people from bringing claims in the first place.
Fundamentally, this strategy of inundating the company with claims only works because it's more expensive for the company to respond to an arbitration dispute than it is for an employee or customer to file one. If that asymmetry goes away, this strategy no longer works. I could see a company witness a spike in complaints, especially if the complaints are filed from an automated system, and conclude that these complaints would likely not result in lawsuits if arbitration was rejected. Now the onus is back on the complainant to actually go forth with the lawsuit.
Also, in the US legal system, it costs very little to file a lawsuit. And for plaintiffs, it generally costs nothing at the early stages because most plaintiff lawyers work on contingency.
One-sided bad faith terms of service have been enforced to great effect in recent years, so I can't see a one sided arbitration agreement getting any scorn or backlash from the current judicial makeup.
The November 25 article[1] mentions the "squirming out" remark by the judge.
A WaPo article from February 16 [2] mentions that each of the 5000 Dashers who filed for arbitration had to put up $300.
[1] https://www.courthousenews.com/judge-accuses-doordash-of-try...
[2] https://www.washingtonpost.com/opinions/2020/02/16/doordashs...
DoorDash is most likely going to use the surge in traffic because of the coronavirus to help push their IPO through sooner than later, taking advantage of the fact they're one of the few types of businesses benefitting from the lock down. If the defense can threaten that IPO, DoorDash might be more pliable to a deal...
Not much gets me going more than someone making tons of demands and then backing out when they actually have to deal with the consequences associated with those demands.
Fuck 'em.
You don't hear as much about European problems online, because they're spoken about in the respective nation's language. This means that it's hard to compare. Most European countries also have many problems like the US. Maybe not to quite the same extreme, but they do exist. The US does have a few things going for it though: very strong protections of speech, very high wages, a system of incredible services - things like Amazon, FedEx etc. From my perspective, things in the US actually seem better than in Europe for the long-term. They just have a few very obvious pain points like healthcare and the silliness of a lack of worker protections in some states.
Just keep in mind that unions aren't universal across Europe or even the EU. They usually exist, but they tend to not have much leverage.
I grew up in Canada, then moved to the US for 5 years before returning home to Canada. It always killed me when my US coworkers said teh same thing about "free speech" as i watched censored TV shows in the US which are not that way back in Canada.
I think "free speech" on the US side is highly overrarted and if you look into it more seriously you will find many nations which are at least at the US level. Some higher, like Canada, which doesnt have the "7 words you cant say on TV" restriction.
Can you link to these laws? Because if you're talking about bill C-16, it's very clear that it isn't making it a crime to express certain beliefs, it's making it illegal to discriminate based on gender or gender identity. Just as the US does with regards to certain traits (such as color, religion, marital status, etc)
> only prevents government restrictions on speech, not restrictions imposed by private individuals or businesses unless they are acting on behalf of the government.
Which means the US right of free speech is somewhat weak compared to some other countries.
Especially it means that any company working "in favor" of the government but not "for it" could very well restrict free speech.
I never understood why anyone from the US think they have a "very strong protection" of free speech.
I don't follow what you're trying to say here? A private company can do as it pleases because an employee's speech could conflict with its business interests. In some cases, other federal, state, or local laws offer additional protections to the employee (ex California provides very strong protections for employee political speech).
The idea is that the government isn't allowed to restrict your speech, but it also can't force you to interact with someone you don't want to. If you say things that offend people, the consequences are your problem to deal with.
That you have to handle consequences when you insult someone or you IDK openly call for the murder of all ... People that's a different matter I didn't intend to go into.
I don't think you can avoid it though.
What if I personally choose not to associate with people I view as activists? Surely that's my right? What if I start a small business that's very up front about refusing clients who are activists? What if Facebook were to ban the accounts of known activists?
Who gets to set the criteria that determine if a topic or group is protected, what constitutes an insult, etc? Who do these rules apply to - only the largest of businesses or even to individuals? How do you balance such rules against the freedom to choose not to associate with someone? How do you avoid situations in which such rules would constitute a form of forced speech?
If you tell Facebook (using your example) that they have to allow speech on their own platform that they don't agree with, then you had better have a very clear, comprehensive, and unambiguous set of legal tests to apply because you're opening an absolutely enormous can of worms. Worse, Facebook is the _easy_ case because you can construct a reasonably convincing argument that the large public cloud providers have intentionally made themselves a sort of public commons (albeit a strange privately owned and operated one). As you look at progressively smaller businesses that serve fewer customers and have more competition, such an argument begins to break down.
I can see the reasoning that a forum (ex Reddit) or web host (ex Cloudflare) is a platform provider and should be required to be neutral, similar to the DMCA Safe Harbor provisions. But I can also see legitimate concerns arising if (for example) YouTube was forced to host videos that they felt tarnished their brand or (for example) Reddit had been legally prevented from banning /r/watchpeopledie.
I dont recall if the "wardrobe malfunction" in the Janet Jackson/Just Timberlake Super Bowl half time show resulted in a fine, but pretty much all live broadcasts are now delayed 15-30 seconds or so that so a producer (or whomever) can hit the censor button if something comes up.
"Between 1990 and 2004, the Federal Communications Commission (FCC) issued fines totalling $2.5 million to radio licensees for airing material it deemed indecent from The Howard Stern Show, the highest amount of any American radio show. "
"On April 8, 2004, Clear Channel was fined $27,500 for each of the 18 violations for a combined $495,000 NAL for airing the broadcast on its six stations that carried Stern"
Any of these publishers could sell tapes or dvds of these shows and face no fines whatsoever. Similarly, they could air them on the internet or on cable television that is not subject to public control of content. There's no restrictions on the content itself, there's restriction on the use of publicly owned bandwidth.
I think it is properly rated. If you only have restrictions against vocabulary then you still have all the other liberty and you can advocate a repeal of the law that bugs you.
I suspect the censorship you were noticing was self-censorship in order to avoid adverse public reaction.
A legendary animated show spells out that you can only use the word "shit" metaphorically, e.g. "I feel like shit". I have to admit that most of the time I prefer people would go easy on my ears if they have to talk literally about defecation.
More generally, protections against the government for personal speech are more complete in the US (both in principle and in practice) than any other country I'm aware of. A few examples might be the Westboro Baptist Church or the infamous Brandenburg v. Ohio case. (https://en.wikipedia.org/wiki/Brandenburg_v._Ohio)
(My view is necessarily US-centric though, so do feel free to point out any counterexamples I might not be aware of.)
we do have "hate laws" here, and you see others commenting and outlining how this is a "restriction" on free speech, but if you look at the law, you will see the US has something similiar as well:
Canada: https://cfe.ryerson.ca/key-resources/guidesadvice/legal-rest...
US : https://www.mtsu.edu/first-amendment/article/1204/breach-of-...
Some of it is deserved BTW; some big unions were/are corrupted and some were connected with organized crime. Even more innocently, unions have been quite conservative; as jobs and technology changed some were very resistant and fought modernization (requiring people who were not needed to be around). But a lot of it also stems from corporate resistance to unionization and the high regard in which ordinary people hold the opinions of corporate managers in the USA.
All that being said, unions have been very good for labor, and when I've worked in union shops (not in a unionized role) they've been really great in terms of qualified people and high quality work. I built my house using union labor and I'm glad I did.
Europe is not immune to these diseases by the way. Certain French unions certainly negotiate against the greater interests of society. And in Germany my non-unionized brother in law (a mechanical engineer) was not allowed to work late at VW -- he was trying to finish a project one evening and a union guy came by and cut his PC's power cable while he was designing a part.
That doesn't make the concept of a union bad. They worked much better 50 years ago, even. It's a great concept, but the implementation got corrupted over the years.
I don't think we'll fix unions' reputations without first fixing unions. And we really need more unions and more credible unions.
As a footnote, in my local school district, under coronavirus school closures, the teacher's union negotiated that the teachers get paid, but they don't need to remotely teach students. Some teachers continue teaching for some amount of time, but essentially on a volunteer basis. Many teachers are just sitting at home, doing nothing except for collecting a pay check.
And so they shouldn't! In many (most?) US states, the public schools are unconditionally funded by the state based on student enrollment figures. Cutting teacher pay during a closure under such a system would be a purely greedy move.
I don't know how it works in the majority of states but I know the model of mostly state funding based upon student enrollment is not universal. In my state the majority of funding is from local tax revenues. For example the budget for my local school district is approximately $1.3 billion. $370 million comes from the state and $30 million comes from the federal government. Another $40 million comes from "misc other sources" and $860 million comes from local tax revenue.
Sources: https://edsource.org/2019/californias-school-funding-flaws-m...
https://nces.ed.gov/programs/digest/d13/tables/dt13_203.20.a...
My wife taught K12 for 12 years and then became an instructional coach teaching teachers how to teach. There's a shitload of work if you want to do it right, and at least half (in our district anyway) will stretch themselves extremely thin to do so. Half of the rest are 9-5'ers and the remainder are shitheads.
Perceived equity issues fed into this as well. The result, of course, is that parents who have time to teach kids have kids who are learning, while the vast majority of the district is learning nothing. With remote learning, the results would be less differential. But I guess the districts feels worse about inequities it contributes to than ones that arise out of inaction. We have a 1:1 program, so all students have technology.
But I would the union preempted this, and is what made this discussion moot.
There was a fairly recent ruling from the SCOTUS that struck down compelling non union members to pay union dues. It was as recently as 2018 or 2019. Cant remember the case name, but it originated in Illinois (a very, very pro union state).
Sure, cooperation sounds good in theory, but don't we have examples (in the US) of where management of a company and management of their union ended up very friendly at the expense of the workers? I'm pretty sure I read about stuff like that in the context of the recent automotive union corruption scandals.
I say try it maybe in one state and see how it goes.
When building your home, you have the option of hiring non-union workers. Workers have the option of not joining the union. The union essentially acts as a service provider to the independent workers. These individuals charge quite a bit more than non-union workers, but often have astounding levels of competence, productivity, and workmanship.
When a company is unionized, none of those things are true. Instead of the union being a de facto endorsement of a particular worker, it acts to protect its own power over the workers. Instead of the company having a choice about who to hire for a particular role, it is forced into one choice. Instead of workers joining a union for their own benefit, they are forced to join because of legal coercion. The union is highly motivated to control and limit its members--freedom for the members means destruction of the union.
All of the statements in that paragraph are false.
My company recently granted an extra 40 hours of COVID PTO to use for flex, which is nice, but they could just stop trying to work around labor laws.
I had another experience in college where the TA union put up barriers for undergraduate students who weren't TAs to apply for university teaching opportunities. Any discussions or office hours must be held in the presence of a TA and if your schedule didn't work out then tough luck.
Yes, if you're making a union film you need to hire union members for positions covered by the union agreement. But unless your studio has signed an agreement with the unions, you're not subject to union rules. Generally, only the big studios and the bigger indies are subject to the Hollywood union rules.
If you don't abide by union rules then you're not eligible for certain awards or screenings.
This doesn't apply to the Academy Awards, Golden Globes, or other major awards. Many of the films nominated for these awards every year don't abide by union rules because their weren't subject to them.
When I see "unions" such as "game worker unite" which is more of a communist political party than a union, or what Kickstarter union wants (have more say on what campaigns can be featured on Kickstarter or not, which is not what a union should be about), I understand why American unions have such a bad rep. These 2 examples aren't what unions should be about. What does a say in moderation policies on a platform has to do with worker conditions? Nothing.
As a recent example in my state, a local establishment raised wages, raised prices, and strictly disallowed tips. I thought it was a great idea, but apparently sales fell and there were complaints from both wait staff and customers. They promptly switched back.
> Which one is better?
Honestly? The European one IMO because it actively prevents the exploitation of workers.
There is immense cultural momentum behind tipping culture.
Where I live it is common to have a 15+% gratuity added to the tab automatically and then an optional extra tip that goes to the full staff. This seems to be a reasonable compromise.
Europe is great for workers who get lucky enough to get a contract (French unemployment is often 2-3x US unemployment), don't want to leave, and don't want to be rich.
Average US GDP per capita is 35% higher than France and Britain, despite having large numbers of poorly educated immigrants. Furthermore, tax rates are much lower in the US than in Europe, so people can actually consume quite a bit more.
[1] https://mjperry.blogspot.com/2011/06/americas-economic-succe...
[2] https://en.m.wikipedia.org/wiki/List_of_countries_by_househo...
Of course the great irony is all of the arguments against unions also applies directly to corporations, yet those same people that are against unions don't really like to talk about the idea of abolishing corporations. Usually those arguments turn into 'one bad apple' or 'they'll be out-competed' or something about the free market, never mind that unions operate on the same free market principle as corporations.
My thinking is basically they could argue that they agreed to the companies terms of arbitration and now the company refused to honour them requiring them to waste their time and money going to court?
It is amazing how so few systems are inherently robust to DDOS.