The only people who really win from traditional legislation are lawyers (and plaintiffs counsel who use the long expensive process to blackmail people - which is 90% of civil cases)
Measurement matters here.
All we really need in the US is for arbitration to be optional, you can start with arbitration but if you believe on good merits you have a case and fail arbitration you should have the right to your day in court.
Throwing out our whole legal system because sometimes the lawyers make the most money is reductionist at best.
With arbitration, the arbiter can put an end to those shenanigans really quickly, because they're not legally obligated to allow for that kind of crap.
There are ups and downs to both systems. The benefits are there for parties of roughly equal size. The down side is there is no recourse if the arbiter makes a completely unfair judgement (e.g. because he thinks some law should not apply, etc).
> All we really need in the US is for arbitration to be optional, you can start with arbitration but if you believe on good merits you have a case and fail arbitration you should have the right to your day in court.
That just makes it the worst of both worlds! The whole point of arbitration is not to have a war of attrition, and to make the process efficient. Your solution doesn't take care of it. If I'm a business getting into a contract with another business, knowing that you can't outspend me in court is important, and lets both of us make a deal. If I know you still want the option to go to court, it's as if arbitration wasn't on the table.
A better system would be to change the law such that for certain, predefined offenses, you can't waive your right to go through the legal system (e.g. sexual harassment).
And of course, both parties should have say on who the arbiter is.
Finally, you are talking to someone who's had experience with arbitration. You might want to tone things down in your rhetoric if you don't have your own experience to bring to the table. Things might sound fine in theory, but can be really, really bad in practice. As an example, on How I Built This, whenever he's interviewing a founder that went to court to enforce a patent they owned, he asks if it was worth it. The answer almost always is "It was a bad idea and we shouldn't have filed a case." This is coming from those who won in court.
That's weird. Two things can be true at once: arbitrary is better than the American legal system, and the American legal system is better than what 80% of the global population live under.
> All we really need in the US is for arbitration to be optional, [...]
It is! You explicitly have to opt in, that's why Uber needs have it in their ToS that you accept. They can't just force it on you, when you have no contractual relationship with them.
"opt in" - as part of a 300 page TOS that you never read, that is modified 4 times annually and you are told to read all 300 pages again.
Just like when a Pull Request is way too long, the rational response is to close it and ask the author to make it more readable.
I don't know how common this is, but yeah, this is a bare minimum that one should have with arbitration.
Very clear case, arbitration is fine. Fuzzy case, I would much prefer something that doesn't tip the scales in advance.
Note that the same bias problem exists with home inspectors. Realtors won't like inspectors that find things that kill deals. That one can be solved by hiring your own inspector with no input from the realtor.
Even though the car manufacturer does indeed pay for the arbitration, I never felt the arbiter was biased, and the judgement was completely in my favor.
If you had better laws, arbitration wouldn't be as necessary.
If eg Uber runs you over or bumps your car, you have no contractual relationship with them, and thus they can't force arbitration on you.
That's why they have to write the arbitrary clause into their ToS that they need you to agree on. No forced arbitration.
Of course, if you don't agree with the ToS, Uber is also not forced to transport you. But that's fair enough.
If you don't like the contract, don't enter it.
Sounds like a great opportunity to start a new company that offers slightly less bad contracts and take all their customers.
IMO, no it is not. It should not be legal to force arbitration via ToS.
Letting entities that hold the vast majority of the leverage and financial/legal/political power in a contract opt out of the legal system and pick an alternative with a financial incentive to side with them is perhaps "fair" to you, but a lot of people would disagree on the "enough" part.
If the contract party A proposes gives too much advantage to party A for party B's liking, party B can make up their mind before they enter the contract.
Btw, if Uber is so powerful as you say, why do they bother with the tinkering around the margin and only force arbitration? Surely the bigger deal would be to jack up prices to thousand dollar per ride?
How's that being forced? (Though I would assume that in most jurisdictions you actually have to book a car and ride in it, to be bound by the more wide-ranging clauses in the ToS.)
It’s one thing to say the legal system is expensive and slow, let’s resolve our issues by a third party, and another thing to where there’s no further action you can take and the arbitration authority is being paid by the company.
Its simply becoming a parallel legal system for a different class.
Could you please tell me more? I am not aware of that case.
I assume the affected people can't just cancel their subscription?
Make it a public record with other bindings like one ruling applies to all customers etc. then at least it’s a system with transparency.
See, that's why court proceedings are public, so that the public can verify that courts are fair. It's also why judges are appointed by democratically elected politicians. Who appointed your arbitrator?
And of course the court system is bad and unfair in a bunch of ways. But it's starting from a much better place than secret, forced arbitration.