Arbitration Everywhere, Stacking the Deck of Justice • Hacker News Board

Re: Arbitration Everywhere, Stacking the Deck of Justice

#61

Post by jessaustin » Sat, Oct 31, 2015, 6:06 PM UTC

branchless wrote: post #44

jjoonathan wrote: post #43

Earlier quoted context omitted.

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

The farmer has never been "on the side" of the pigs and cattle. In precise analogy, the state has never been "on the side" of the people.

Re: Arbitration Everywhere, Stacking the Deck of Justice

#62

Post by Silhouette » Sat, Oct 31, 2015, 6:07 PM UTC

jimktrains2 wrote: post #14

I've always wondered: since I don't have the ability or power to negotiate these contracts, are they even a legal contract regardless of if I agree to them? Moreover, as a consumer, all (or nearly all) establishments that sell similar products use similar contracts, so do I actually have a choice?

Maybe this depends on jurisdiction, but here in the UK these kinds of agreements have legal weight but there are also various consumer protection laws that can trump them if the terms are unfair or if the agreement doesn't disclose certain important information in a suitably prominent way.

Contrary to what the cynics are saying elsewhere in this discussion, those consumer protection laws are actually growing stronger and adapting better to the electronic age as time passes, at least here and apparently across Europe more generally. There were some big changes just this month, in fact.

An interesting experience we had while preparing terms for a new on-line B2C service was being advised by a lawyer who is actually a barrister (i.e., one who does courtroom advocacy) rather than the more usual solicitor. Our lawyer was very strongly in favour of using plain language and of having important but potentially non-obvious or unexpected terms prominent and near the start of the agreement. In other words, he was very keen that the agreement really should be written how you would hope these things would be written. His argument was that if brown stuff ever actually hit the fan, it's going to be up to a court to interpret the agreement, and that court is going to do so in a reasonable way based on what the parties involved thought they were signing up for. As such, it's less likely that a court would uphold some sneaky term hidden on page 974 that no normal user would ever have read, but if you have something unusual and it's clearly spelled out and prominently highlighted within the first few terms then it probably would stand up unless there's some strong legal argument against it (such as being automatically unfair under the consumer protection laws, for example).

Re: Arbitration Everywhere, Stacking the Deck of Justice

#63

Post by bmh_ca » Sat, Oct 31, 2015, 6:18 PM UTC

nickff wrote: post #51

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…

What if arbitration clauses are not a problem at all? There is a great deal of contradictory evidence with respect to whether arbitration is more or less favorable to consumers and employees (though it is definitely very bad for class-action lawyers). But even if we assume for the purpose of argument that consumers always lose disputes which are arbitrated, they may be willing to make that trade in exchange for reduc…

I was a class action lawyer for several years.

There is a great deal of definitive evidence that arbitration clauses undermine the purposes of class proceedings, those purposes being:

1. increased access to justice (i.e. one may be automatically included in a successful claim, as opposed to seeking prospective reward through a potentially lengthy and expensive adjudication);

2. lowering of overall cost of adjudication (i.e. many issues may be resolved at once, at lower expense to the plaintiffs, defendant, and the courts); and

3. behavioural correction (i.e. raise the likelihood of bad behaviour by corporations resulting in monetary consequence).

Contracting-away class procedural rights can undermine point #1 and #3. Most people do not litigate even when they have an excellent chance of success, and behavioural correction requires a certain percentage of individuals to bring and succeed in their cases. The percentage who tend to litigate, and whom can be confidentially settled with out of court, are empirically a fraction the aggregate exposure from a class proceeding.

Which is all to say, arbitration clauses are not a problem if you do not feel like corporations should have monetary consequence for bad behaviour. This is certainly good for the people who own the corporations.

There is a problem, whether perceived or real, of "lottery ticket litigation" where plaintiff class action lawyers receive a large payout on success. Certainly one wants to incentivize capable lawyers to take on hard and speculative projects by dangling good returns, but in the case of class actions I have always thought of it more as a public interest litigation. There should be an incentive to succeed, but properly employed class proceedings can have a substantial public benefit. Lottery litigation can attract the wrong lawyers, though in my experience there is a fairly wide spectrum. On the other hand, public service class proceedings have their own set of distinct issues.

Re: Arbitration Everywhere, Stacking the Deck of Justice

#64

Post by enraged_camel » Sat, Oct 31, 2015, 6:20 PM UTC

mikeash wrote: post #7

waqf wrote: post #5

Earlier quoted context omitted.

I don't, as a consumer, sign these things because I think they're reasonable. I sign them because I don't have the negotiating power to get a better contract, and the market isn't frictionless enough to offer my preferred terms at any reasonable price. There is already specific law in some jurisdictions which reduces the applicability of this kind of consumer take-it-or-leave-it contract: see https://en.wikipedia.org…

I think that simply requiring the contracts to be read in order to have force could take care of unreasonable terms in this case. Here's how I imagine it playing out: 1. Because long contracts would immediately cause hugely increased costs for these companies if they had to wait for every customer to read them, they would greatly reduce the length and complexity of their contracts. 2. The most unconscionable clauses…

Reading the contract isn't sufficient. You also need to be able to understand the legal language and its implications, and most people can't do that. If I read that arbitration clause, it wouldn't occur to me at all that it's a way for the other party to circumvent the court system.

The real problem here is that companies tend to have their own legal counsel writing these documents, but customers don't have their own legal counsel reading them and advising them about potential pitfalls.

Re: Arbitration Everywhere, Stacking the Deck of Justice

#65

Post by kazagistar » Sat, Oct 31, 2015, 6:20 PM UTC

This is the second step of undermining individual liberties in favor of corporate oligarchies, by subverting the justice system. Thr first step, of course, was subverting the legislative system via citizens united, turning elections into bidding wars.

There isn't much left to do now except slowly turn the dials.

EDIT: I guess the obvious next step is subverting state authority entirely, through things like the TPA, that put corporate interests above that of "democratically" elected states.

Re: Arbitration Everywhere, Stacking the Deck of Justice

#66

Post by jsprogrammer » Sat, Oct 31, 2015, 6:20 PM UTC

djcapelis wrote: post #40

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…

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. https://github.com/SimpleFinance/policies

Exactly what I want to be doing all day: watching my bank's github repo and trying to keep up with their ever changing policies.

Edit: Mentally tracking and integrating policy reversions[0] sounds like a good time as well.

[0] https://github.com/SimpleFinance/policies/commit/b0a644035fb...

Re: Arbitration Everywhere, Stacking the Deck of Justice

#67

Post by kazagistar » Sat, Oct 31, 2015, 6:26 PM UTC

rayiner wrote: post #50

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?

They hire their thugs to break your kneecaps when you don't pay.

Re: Arbitration Everywhere, Stacking the Deck of Justice

#68

Post by Zigurd » Sat, Oct 31, 2015, 6:31 PM UTC

ksk wrote: post #30

It should be illegal to "sign away" legal protections that you're afforded under the law.

It probably should not be uniformly illegal. For example, settling a lawsuit generally involves promising not to sue. Perhaps such agreements need to be supervised, which would take them out of the domain of "click-through" contracts.

Re: Arbitration Everywhere, Stacking the Deck of Justice

#69

Post by vezzy-fnord » Sat, Oct 31, 2015, 6:37 PM UTC

rayiner wrote: post #47

vezzy-fnord wrote: post #38

Earlier quoted context omitted.

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…

Thanks for clarifying.

Re: Arbitration Everywhere, Stacking the Deck of Justice

#70

Post by hwstar » Sat, Oct 31, 2015, 6:42 PM UTC

Governor Brown vetoed AB 465 which could have helped put a stop to this with regards to employees having to arbitrate instead of having their day in court. His reason for vetoing AB 465 was that Federal law pre-empts state law. The federal government is too tightly controlled by large corporate interests, and I don't see reform of the Federal Arbitration Act happening any time soon. There are just to many powerful interests with a lot at stake, who would lose if arbitration were reformed at the Federal level. Maybe we should put this on the ballot as an initiative instead. At least it would send a message.

The problems with arbitration is that it does not affect court precedents, the records are private, and there's no jury involved. This all weighs heavily in favor of the employer over the employee.