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Comment by cnelsenmilt | Hacker News Reader

The clear solution should this stand is to include a Terms of Incorporation when a business is created stipulating that they waive their right to a trial and that any labor disputes will be settled by independent arbitration.

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The courts have routinely said you can't sign your rights away. This has gotten muddy with arbitration clauses being sometimes upheld, but for example, you can't sign a contract to entry into slavery for example.

Courts have also routinely said that you CAN sign away your rights, i.e., waive them; courts enforce waivers every single day.

The law distinguishes between alienable and unalienable rights. The right to a trial is by common law an unalienable one.

That’s incorrect: Jury-trial waivers are routinely enforced. (California and Georgia won’t enforce advance jury waivers in state courts, as a matter of state law, not federal-constitutional law.) And there's also a thing called a "confession of judgment," which in effect is a waiver of any trial.

What I said is not in fact incorrect, you are confusing waiving a right with alienating it, here's an essay[0] which can sort you out on the distinction.

> Alienating a right is different from exercising it or waiving it in a particular case. A police officer comes to my door and asks to look around my apartment; if I give my permission, I have waived my right. But the next time he comes, he must ask again, and if he is refused he cannot rely on my previous permission.

[0]: https://www.bostonreview.net/forum_response/jeremy-waldron-i...

Waivers aren't necessarily one-time in nature; they can be ongoing.

Example: Many, many contracts explicitly say that any waiver of a contract right is only one-time, so as to rule out an argument by an opposing party that the waiver was continuing.

Example: If you enlist in the military, you waive — on an ongoing basis — your Sixth Amendment right to trial by jury, because the Uniform Code of Military Justice prescribes who can sit as a member of a court-martial [plural: courts-martial].

So in the context we're discussing, calling rights "inalienable" or "unalienable" is not a helpful concept.

There's an enormous difference between waiving rights for a specific (alleged) infraction and carte blanche signing away your rights for anything that might ever happen in the future.

I don't know what courts and what cases you're talking about, but SCOTUS has repeatedly held that binding arbitration agreements override almost all rights.

https://en.wikipedia.org/wiki/AT%26T_Mobility_LLC_v._Concepc... (binding arbitration overrides state law)

https://www.nytimes.com/2018/05/21/business/supreme-court-up... (binding arbitration overrides labor protection)

https://www.washingtonpost.com/business/supreme-court-backs-... (binding arbitration overrides consumer protections even in cases of fraudulent deceptive advertising)

A corporation has no right of protection from slavery.

And just imagine if you said it was protected from slavery ... would that mean all corporations are suddenly free of the dictates of their executives, their boards, their shareholders.

Exactly what would this emancipated entity be?

Then what is an NDA if not a contract to waiving rights to speech?

An NDA is a contract, not a law passed by Congress. First five words of the 1st Amendment:

> Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

If you break it, it's a breach of contract, not a criminal act and you didn't break any laws.

I was responding to a comment about courts saying you can't waive rights away in contracts. I posed the NDA as a counter-example.

Yes, but your example doesn’t work here. The bedrock of what we call our free speech rights is more of a prohibition on Congress from passing laws that impede that. Signing such a contract doesn’t contradict the First Amendment.

It does though because its a contract. There are states which enforces, in their contracts, various anti-boycott measures regarding Israel. These are effectively anti-free-speech clauses and they are imposed by the government. But, are allowed because they are agreed to in the terms of the contract.

The courts view arbitration as a _forum_ change. The idea is that you're waiving some procedural rights while retaining all substantive rights. This is independent of a jury waiver (although arbitration necessarily requires a jury waiver).

There are some severe problems both in theory and in practice, but that's the rough justification.

At the risk of spamming (I think I've pasted this link several times recently) I've been compiling as much information as possible here. https://arbitrationinformation.org/docs/problems/

Aren't corporations incorporated on the state level? Unless I am missing something at least one state would not include this in their terms and companies would flock to that state if they wanted trials.

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