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Arbitration Everywhere, Stacking the Deck of Justice

nytimes.com

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Re: Arbitration Everywhere, Stacking the Deck of Justice

#41

Post by jcfrei »

makecheck wrote: post #13

It'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…

Why doesn't somebody just create a git repository with contracts from major companies and push changes whenever they appear? Link to a subreddit that discusses said changes and voilà you get a little more transparency. Or am I missing something?

Re: Arbitration Everywhere, Stacking the Deck of Justice

#42

Post by m_fayer »

mikeash wrote: post #24
m_fayer wrote: post #16

Earlier 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…

You've edited the quote to make it look like I said something I didn't say. I said that "most consumers" could understand what contracts say if they actually read and put in effort to understand them. I said that "people," meaning basically everybody, don't read contracts in the first place. "Most consumers" and "sign without reading" aren't together in my original comment, either in space or meaning! In any case, I…

I just highlighted the phrases that made me interpret your statement as I did, but I misinterpreted. Wasn't intentional, thanks for the correction.

Re: Arbitration Everywhere, Stacking the Deck of Justice

#43

Post by jjoonathan »

branchless wrote: post #28
makecheck wrote: post #13

It'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…

They should just tell companies if they cannot describe the legal situation in under a page in a clear language for general consumer products then they cannot sell them. Diffs won't help - the aim from version 1.0 is to obfuscate.

1 page is plenty long to bury unconscionable landmines in, especially for the party controlling UX. Until courts are ready to legislate UX, the better approach is to legislatively augment the court's "soft" power to void contracts that a reasonable person would "sign" without reading. Vague as hell, yes, but it fixes the incentive landscape without leaving obvious loopholes: longer and harder to read = more enforcement risk.

Also, this principle already exists and has a decent track record. Which is why my lease is 3 pages long, simple, and relatively landmine-free (I had to initial key clauses) while my iTunes contract is 50 page long, impenetrable, and landmine rich. The principle just needs to be strengthened & applied in the tech world.

Re: Arbitration Everywhere, Stacking the Deck of Justice

#44

Post by branchless »

jjoonathan wrote: post #43
branchless wrote: post #28

Earlier quoted context omitted.

They should just tell companies if they cannot describe the legal situation in under a page in a clear language for general consumer products then they cannot sell them. Diffs won't help - the aim from version 1.0 is to obfuscate.

1 page is plenty long to bury unconscionable landmines in, especially for the party controlling UX. Until courts are ready to legislate UX, the better approach is to legislatively augment the court's "soft" power to void contracts that a reasonable person would "sign" without reading. Vague as hell, yes, but it fixes the incentive landscape without leaving obvious loopholes: longer and harder to read = more enforceme…

It's simply a symptom of the wider problem that is a scourge of all our lives:

- states are on the side of corporations not the people

Re: Arbitration Everywhere, Stacking the Deck of Justice

#45

Post by snerbles »

BlackFly wrote: post #26
m_fayer wrote: post #16

Earlier 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.

If there were a way to transmit the altered user agreement back to the other party, the ramifications could be amusing.

Re: Arbitration Everywhere, Stacking the Deck of Justice

#46

Post by thrownaway2424 »

ccvannorman wrote: post #27
makecheck wrote: post #13

It'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…

Yeah, the "diff" is a big one. There should be 5-10 major types of contracts that companies can work from, and consumers should be told "This is contract 5. The diff is as follows:" and limit the diff in length

Some states have this. In Texas for example there is a statewide standard residential lease contract. When you rent property in Texas you know what you're getting into.

Re: Arbitration Everywhere, Stacking the Deck of Justice

#47

Post by rayiner »

vezzy-fnord wrote: post #38
nabla9 wrote: post #31

This 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…

That's a very misleading characterization. The purpose of the FAA is to eliminate judge-created exceptions to enforceability of arbitration contracts. The premise is that arbitration clauses should be enforced the same as any other voluntary contractual provision and that the judiciary shouldn't be allowed to give such provisions special treatment. The verbosity of form contracts has nothing to do with regulation or the FAA, except to the extent that they waive "default rules" which often protect consumers.

Re: Arbitration Everywhere, Stacking the Deck of Justice

#48

Post by raj_o »

I am very familiar with arbitration agreements and how they both are enforced and came about. For years companies have tried in vain to get theses clauses accepted by the courts and failed, until recently when SCOTUS chimed in with their decision: Congress wanted the Federal Arbitration Act (FAA) of the 1920s to be the law of the land and forced arbitration was considered statutorily okay.. The FAA [ https://en.wikipedia.org/wiki/Federal_Arbitration_Act, 1925] originally was a maritime law, where two parties in different countries would rather pick an arbiter to decide their dispute rather than in any one country.

What may surprise people is it's not just the signing of a contract, which enables this clause to be enforced, but also just a business' intent to settle cases arbitrarily. For instance, opening up a package of something you just bought might show intent that the contract therein is what you agree to. One nurse wasn't going to sign her rights away to an arbitration agreement, so she told her company 'no' to renegotiating her employment contract. But the courts upheld that she knew the intent of her employer and forced her into arbitration.

These companies are hiring their own judges, basically. What's scary is that these just aren't private contracts, and private court systems we are dealing with -- but private law!

SCOTUS ruled recently that even if the parties do not like the outcome of the arbitration decision, they have no legal recourse. Imagine going into a situation where a company knows the history of a judges decision and you do not? How incredibly unfair, let alone intimidating. I wouldn't even bother to sue, would you?

I won't go on about this. I can write a lot. Here's a list of links I collected about companies shorting the normal process of laws that protect citizens. The area is non-compete agreements:

http://www.marketwatch.com/story/more-firms-requiring-non-co...

http://www.lexisnexis.com/legalnewsroom/labor-employment/b/l...

http://rickmasseyblog.com/2010/10/04/are-you-trapped-by-a-no...

http://www.romingerlegal.com/floridacourts/court_opinions2/5...

http://apps.americanbar.org/litigation/committees/adr/articl...

http://www.justice.org/cps/rde/justice/hs.xsl/19905.htm

http://www.flacorplaw.com/Non-Competes.html

http://thenoncompeteblog.com/2013/01/18/prominent-florida-ch...

http://floridamediationgroup.com/articles/spero/2000_Employe...

http://www.noncompetenews.com/?tag=/Arbitration

http://www.franczek.com/frontcenter-Nitro-Lift_Arbitration_N...

http://articles.chicagotribune.com/2012-08-01/jobs/sns-20120...

http://www.youtube.com/watch?v=quZL7WKLXt4

Re: Arbitration Everywhere, Stacking the Deck of Justice

#50

Post by rayiner »

ccvannorman wrote: post #29

In a law-heavy society, the rich, powerful and savvy can easily wield law preparation to exploit the average joe. It's been trending that way in the US since the beginning.

And in a law-light society what happens when your phone company charges you $600 to cancel?
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