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Comment by oceansky | Hacker News Reader

Good outcome, but forced arbitration should still be illegal.

Arbitration isn't the issue. The issue is when one of the parties has vastly more legal resources than the other, and gets to pick the arbiter.

Arbitration is fine for two equal parties when a third party neutral arbiter is chosen. I've been through that kind of arbitration and it was great.

But when the huge company gets to pick the arbiter (or even just threaten the arbiter with taking away all their other cases), that is when you have problems.

Secret justice is not justice.

An interesting take, never really thought about it. Why isn't it justice?

https://firstamendment.mtsu.edu/article/star-chamber/

I'm not the right person to explain English history, secret courts, and the American revolution. Suffice to say, public courts a vital check on the power of the state by way of the court of public opinion. The real final court of appeal.

Where is the power of the state involved here?

Courts are a function of the state.

Not open, not accountable by the public, lack of juries. It's not hard to see how arbitration mostly benefits corporations and not the civilians.

So should guilty pleas, nondisclosure agreements, and trials where juries can't decide on degree rather than prosecutors.

If you have been through both processes, you would more likely say the traditional civil process should be illegal.

No, you would say it needs to be reformed and funded, we have an extremely legalistic society that allows endless delaying and does not fund its core services very well.

> extremely legalistic society

Food for thought (not specifically relevant to this case): I wonder how much would go away if the US had universal healthcare, or to put it another way, how much of its legal system is spent figuring out who pays for medical treatment

What's the line? If 2 brothers sign a contract, can't they decide their father will be the judge if disputes arise?

If there's a sports match, shouldn't the sports arbiter be able to decide whether some team scored a goal or not?

These are all valid civil contracts. It only affects the civil claims, never criminal, and the venue for disputing the arbitration clause (if you believe arbitration wasn't legal to begin with) are the public courts anyways, who will delegate or not to the private court.

Almost all countries recognize it and it has a quite defensible theory.

i think the keyword is "forced". there's very little now that the consumer can do because it seems everything requires arbitration now and people still have to operate in society.

I agree that word is putting some work, and calling it forced is already partisan.

To the extent that you believe it is forced, you can dispute it on a public court, and if you can prove you were forced, you wouldn't be subject to arbitration.

Arbitration in private courts only exists if both parties agree prior to agreeing to the contract to that clause.

If you believe that it's forced because you never read the Terms of Agreement, I feel that's more of a discussion of whether clickwrapped terms are valid or not, it would be a way more radical position to believe that they have absolutely no effect. And if they do have an effect, agreeing to private arbitration is no different.

I think we need to stop calling one-sided "terms documents" that are entirely written by one party, the party with 100x+ the monetary resources and power of the other party, with no input from that other party and not subject to any negotiation whatsoever, "agreements." They are not what any reasonable person would call an agreement. There is no meeting of the minds, and the terms are entirely controlled by one party.

Don't forget that same party is also able to change them at any time, Darth Vader style!

It sure is contextual. And nobody would disagree with your examples. The difference here seems to be more of a power imbalance than any objection to terms. In particular, terms of service are often very dense documents. Many people are only presented these documents at the moment they sign up for a service. And people are not usually careful in these situations. I bet most of the Uber signups were outside of bars or venues where someone really needed to get home. So there’s some duress there. So it’s probably not that cut and dried. It’s more analogous to presenting a contract to harvest your wheat field the day before a big rain. If you’re the only guy with a combine for miles then that puts you in a position of relative power. And historically the US hasn’t permitted people to exploit their positions to the maximum extent, usually when it would be immoral by the standards of society. I think this exists in a gray area. It’s not that easy.

I think my gripe is less that it exists and more so that it's not a negotiated agreement. I think it should only be allowed if the contract was negotiated between two parties with full authority to offer any terms in the negotiation. If it's a standardized, take it or leave it, contract where one party has no opportunity to offer alternative terms that get proper and full consideration by the other party, it shouldn't be allowed. In most of the examples you give, they are contracts that have been clearly negotiated between parties, not click-wrapped take it or leave it, my way or the highway, terms.

> What's the line?

The line that minimum should be against using this as a tool against consumers. To the extent it should exist at all, which is arguable, it must be between parties that are either equal in standing or have genuine commercial disputes between duly organized business entities.

I think such terms should require signatures and initials. Holding people to terms they are unaware of is not fair.

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