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

Re: Arbitration Everywhere, Stacking the Deck of Justice

#101

Post by wpietri » Sat, Oct 31, 2015, 9:47 PM UTC

ctide wrote: post #84

lobster_johnson wrote: post #71

Earlier quoted context omitted.

Simple looks incredible. Is it as great as it looks?

It depends. I tried to switch to Simple, but at the time I was working as an independent contractor. The maximum size of a check you can deposit without mailing it to them is $3k. Having to mail in every check I received was a hassle that outweighed any benefits Simple provided over a regular bank account.

For what it's worth, last time I was doing independent contractor work, I used a billing firm, MBO Partners. They took 4% of my gross and treated me as a W2 employee. My taxes would come out of the gross, as would any benefits I elected. The rest would get direct deposited like a normal paycheck. I would have spent more than 4% of my time screwing around with paperwork, so I thought it a pretty good deal. I suspect there are other firms like this, but I liked 'em enough that I used them for 8 years or so without ever looking for alternatives.

Re: Arbitration Everywhere, Stacking the Deck of Justice

#102

Post by wpietri » Sat, Oct 31, 2015, 9:53 PM UTC

bradleyjg wrote: post #91

bmh_ca wrote: post #63

Earlier quoted context omitted.

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 adjudicatio…

>> behavioural correction requires a certain percentage of individuals to bring and succeed in their cases No it doesn't. Both the extensive use of the class form and punitive damages (or close substitutes) are virtually unique to the United States. Ad hoc regulation by an entrepreneurial plaintiff's bar acting without meaningful client input is not the not the only effective means to regulate businesses. On the cont…

The US is also uniquely suited to business innovation. I think that's no coincidence. Depending upon after-the-fact class action instead of up-front regulation means more focus on actual harm than fear of harm.

I also broadly wouldn't trust the US to be particularly good at government regulation until our elections are publicly funded. There's a lot of evidence that our legislation is distorted towards the interests of the moneyed. I don't think that's a recipe for energetic, effective business regulation.

Re: Arbitration Everywhere, Stacking the Deck of Justice

#103

Post by wpietri » Sat, Oct 31, 2015, 9:56 PM UTC

jcfrei wrote: post #57

nickff wrote: post #51

Earlier quoted context omitted.

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…

That's a good point. One could just argue that in time consumers will just favor contracts with companies that either don't have arbitration clauses or if they do the consumer doesn't care anyway about losing potential disputes. I think it's only really a problem when a company holds a (quasi) monopoly in a certain business. Like telcos do in the US in many states.

One could argue that. But markets are mainly good at solving problems that occur frequently and with short feedback loops. The sort of problems that lead to class action lawsuits are rarely either, let alone both.

Re: Arbitration Everywhere, Stacking the Deck of Justice

#104

Post by srtjstjsj » Sat, Oct 31, 2015, 10:00 PM UTC

nitrogen wrote: post #72

jcfrei wrote: post #41

Earlier quoted context omitted.

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?

Contracts are probably subject to copyright, which means the DMCA could shut down such a repo.

A fair use claim should defend it. Understanding a contract is necessary for complying with it.

Re: Arbitration Everywhere, Stacking the Deck of Justice

#105

Post by srtjstjsj » Sat, Oct 31, 2015, 10:00 PM UTC

rmc wrote: post #58

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…

And then abusive companies can just make a near unreadable diff. Rearrange all the sections in the document so that the diff is massive and unreadable.

That's a trivial challenge for a computer to solve.

Re: Arbitration Everywhere, Stacking the Deck of Justice

#106

Post by wpietri » Sat, Oct 31, 2015, 10:02 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…

You can't force people to read them. You can only force them to agree that they've read them. Which is by and large what contracts say already. ("I have read the terms and conditions...")

And even if you could force people to read them, you can't force them to understand them, which is really what's necessary for your plan to work. Those contracts are generally written by lawyers for other lawyers. To understand them you need the IQ of a lawyer and a fair bit of their education. Not being able to get an oil change until you've done a semester of contract law is something that nobody's going to be happy about.

Re: Arbitration Everywhere, Stacking the Deck of Justice

#107

Post by srtjstjsj » Sat, Oct 31, 2015, 10:03 PM UTC

mikeash wrote: post #77

morninj wrote: post #75

Earlier quoted context omitted.

Unfortunately, changing the text on your end has no legal effect. It's not a contract unless the other party agrees to your change.

Turning into "not a contract" is a legal effect, though, and typically it's the desired one. When there's a EULA or similar, the company is trying to form a contract with you, usually with lots of unfair terms. If replacing the text with your own and clicking a button that you renamed from Agree to Disagree voids the whole thing, well, mission accomplished. There would only be a problem if the law says that not only…

"voiding the whole thing" means you don't have a license to the software either.

Re: Arbitration Everywhere, Stacking the Deck of Justice

#108

Post by wpietri » Sat, Oct 31, 2015, 10:05 PM UTC

micwawa wrote: post #88

Quanticles wrote: post #22

Earlier quoted context omitted.

There is also an imbalance in negotiating position in these agreements. If every credit card company you deal with says you must agree to arbitration, what leverage do you have to push back on that? There's just not enough competition in the market to push back on each one of the issues raised in these agreements. Either the government needs to create enough competition in the market such that consumers have choice o…

Or some very ambitious consumer advocate needs to step up and form some sort of large scale consumer union. I would be "in."

Absolutely. I'd join just on general principle.

I think this could also be pulled off by somebody like Costco. They already have a big membership and strong negotiating power. And a large part of their job is sorting through many possible merchandise options and only providing the good ones to their members. It'd be nice to see them take it a step further.

Re: Arbitration Everywhere, Stacking the Deck of Justice

#109

Post by srtjstjsj » Sat, Oct 31, 2015, 10:07 PM UTC

CodeWriter23 wrote: post #49

The most concerning thing to me in this article is the account of SCOTUS rewriting the Federal Arbitration Act from the bench.

Eh, once Congress starts acting in bad faith against citizens, what's the harm in SCOTUS exceeding its authority? The law derives is legitimacy from its effect on the society it governs, not from the grace of God.

Re: Arbitration Everywhere, Stacking the Deck of Justice

#110

Post by srtjstjsj » Sat, Oct 31, 2015, 10:09 PM UTC

flyt wrote: post #18

ipsin wrote: post #11

Earlier quoted context omitted.

I've never heard of that. Can you provide one example of a company that allows you to opt out of binding arbitration?

Dropbox: https://www.dropbox.com/privacy#terms Opt-out of Agreement to Arbitrate. You can decline this agreement to arbitrate by clicking here and submitting the opt-out form within 30 days of first accepting these Terms. Which links to https://www.dropbox.com/arbitration_optout

Wow that's a skeezy place to bury it. Their email drip spampaigns don't remind me to check the arbitration options when they tell me all about how to make the most of my new account.