This is why strong consumer protection laws and regulation is good. They generate set of standards for enforceable contracts and remove surprises.
Arbitration Everywhere, Stacking the Deck of Justice
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Re: Arbitration Everywhere, Stacking the Deck of Justice
#32Many companies make opt out clauses - can we make an program that does automatically?
I've never heard of that. Can you provide one example of a company that allows you to opt out of binding arbitration?
The article mentions this towards the end, but dismisses their utility. I wonder when the opt-out period begins -- on acceptance of the contract, presumably.
While many companies also include an opt-out provision on arbitration — typically between 30 and 45 days — few consumers take advantage of it because they do not realize they have signed a clause to begin with, or do not understand its consequences, according to interviews with lawyers and plaintiffs.
Re: Arbitration Everywhere, Stacking the Deck of Justice
#33Earlier quoted context omitted.
>Most consumers... They simply sign without reading... You seem to be implying that many people on HN do read them, and if that's the case, I would be very surprised. I certainly don't. There's frequently a new EULA I have to consent to when I update iOS, or iTunes, or some app, or sign into a cloud console, and the list goes on. If I read all of them it would probably add up to a good workday every week. I'm willing…
I edit the HTML on most end user agreements I sign to read, "I disagree and waive no rights," then I click that button. I wonder in what sense these agreements are enforceable when they cannot prove that people actually agreed with them? Hard copies of contracts are kept for a reason, I always assumed.
I would really like to see that play out in court. The fix (for the companies) would be to simply include the text of the contract (or maybe even just a hash) in the form submission.
Re: Arbitration Everywhere, Stacking the Deck of Justice
#34Many companies make opt out clauses - can we make an program that does automatically?
Seems feasible to do as a Chrome plugin.
Re: Arbitration Everywhere, Stacking the Deck of Justice
#35I suspect the fine print will eventually be outlawed for use on the average consumer (unless we radically increase the education of the average consumer). It is well established by now that today's average consumer lacks the reading comprehension level required to fully understand these fine print agreements.
I don't know that it's about reading comprehension. I think most consumers could understand them if they put the effort in. The problem is simply that people don't read this stuff in the first place . They simply sign without reading, assuming/hoping/praying that the terms are reasonable. And really, can you blame them? Contracts are so vastly overused and they're made with the assumption that the consumer isn't goin…
> The problem is simply that people don't read this stuff in the first place. They simply sign without reading, assuming/hoping/praying that the terms are reasonable.
that's not the problem. I see these arbitration clauses all the time, yet I sign anyway. Because I can't function without a credit card, without a cellphone, without internet hookups to my house, etc. It's not reasonable to say that I have to forego these services, or that I need to carefully shop for those vanishingly few providers that currently don't have such a clause, only for them to add one in when the contract renews in a year.
What choice does the consumer really have if these clauses are unavoidable?
edit: waqf's comment makes this point way better.
Re: Arbitration Everywhere, Stacking the Deck of Justice
#36It's not just the length of the initial contract, it's the lack of a sane "diff" system. Even if someone is willing and able to read a 44 page contract the first time, the next time version 1.0.1 of something comes out you are generally given a 44.5 page contract to re-agree to. "Somewhere" in there, they changed something; good luck figuring it out. So even if the version you read gave you permission to sue, the ame…
We didn't solve this type of thing for the adversarial case. If contracts became easily electronically diffable, then companies who didn't want their diffs comprehensible would randomly move sentences around and substitute words in every version of their contracts.
Perhaps one could legislate that legally immaterial changes have to be kept in separate commits than legally material changes, and that those have to be as atomic as is reasonable.
Re: Arbitration Everywhere, Stacking the Deck of Justice
#37It's not just the length of the initial contract, it's the lack of a sane "diff" system. Even if someone is willing and able to read a 44 page contract the first time, the next time version 1.0.1 of something comes out you are generally given a 44.5 page contract to re-agree to. "Somewhere" in there, they changed something; good luck figuring it out. So even if the version you read gave you permission to sue, the ame…
The only way to bring about that kind of change is from the regulatory level, the companies benefit from obfuscating the changes they're making you agree to.
Making it easier to see that they just added a single provision allowing them to sell your data is not something companies will want to implement themselves.
Re: Arbitration Everywhere, Stacking the Deck of Justice
#38This is why strong consumer protection laws and regulation is good. They generate set of standards for enforceable contracts and remove surprises.
Yet it appears a significant reason for the emergence of this phenomenon is the regulatory statute of the FAA which elevates arbitration to the same standard as contracts, and preempts state decisions on their enforcement, and moreover has had its restrictions (i.e. ability to waive class action in arbitration clauses) subsequently reaffirmed by SCOTUS.
As such, this has only created more surprises. But it's a folly to call it a failure due to lack of regulation, since this all takes place in an environment that is already heavily, and in fact often incomprehensibly regulated. The verbosity of standard-form contracts isn't incidental.
Re: Arbitration Everywhere, Stacking the Deck of Justice
#39Above all, the purpose of arbitration clauses in consumer contracts is to eliminate class action lawsuits. Which may or may not be a good thing depending on your point of view. In the long run, companies will probably not see sustained relief from scrutiny of their practices. You'll likely see a move to a more European model, with fewer lawsuits but more aggressive consumer protection agencies.
Re: Arbitration Everywhere, Stacking the Deck of Justice
#40It's not just the length of the initial contract, it's the lack of a sane "diff" system. Even if someone is willing and able to read a 44 page contract the first time, the next time version 1.0.1 of something comes out you are generally given a 44.5 page contract to re-agree to. "Somewhere" in there, they changed something; good luck figuring it out. So even if the version you read gave you permission to sue, the ame…
I get to have this experience with one of my banks. And all I need to do to stay updated with the terms is click watch on the github repo. It's the way things should be.