4 ms·

If arbitration proceedings grounded in superstition and other tomfoolery (i.e., Scientology) hold up, it seems like anything will. I think there needs to be an

If arbitration proceedings grounded in superstition and other tomfoolery (i.e., Scientology) hold up, it seems like anything will. I think there needs to be an 'arbitration by combat' service.

sp332 11y ago
More than anything, the cases show the power of arbitration clauses. If you sign a contract with someone with one of these clauses, you have legally opted-in to the arbitration process. I'm against drive-by EULA's, but other than that I can't really see a reason not to uphold them.
- scott_s 11y ago
  I also don't have a legal argument against it. But it deeply violates my sense of fairness that one cannot appeal to the actual courts, and must participate in religious-based courts, even if such courts will be obviously biased against you.
  - KevinEldon 11y ago
    I believe, at least in the US, the ideas it that arbitration is for civil dispustes, not criminal disputes. I believe your concern is that a person will be dealt with unfairly in a civil dispute... I would argue that if any arbitration clause for civil issues is to be upheld then it must be upheld for all of these agreements where there is no criminal issue; otherwise the party that feels they will do better outside of arbitration will always choose to not use arbitration regardless of their prior agreement... that seems unfair to me; to go back on the original agreement.
    - scott_s 11y ago
      This article is part of a larger series by the NYT on the rise of arbitration: http://www.nytimes.com/2015/11/01/business/dealbook/arbitration-everywhere-stacking-the-deck-of-justice.html http://www.nytimes.com/2015/11/01/business/dealbook/arbitrat... The difficulty is when there is a power asymmetry in the original agreement, as there normally is when it's an individual signing a contract with a larger organization. Two large companies agreed to arbitration? Stick to the original agreement, as both sides paid lawyers to advise them on what to do, and there was almost certainly a negotiation. But individuals don't, usually, have the resources to hire lawyers or the ability to do the kinds of negotiations required to get favorable contracts. In such situations, I am troubled that we can end up signing away our ability to appeal to the courts to intervene on our behalf. If this issue gets enough press for a long enough time, I could see legislation that voids arbitration clauses in certain cases.
      - KevinEldon 11y ago
        I have not read the entire series so I may be misnifored or speaking to other topics covered in the series, but I think many if not the majority of contracts are signed between parties with power asymmetry. One party write a standard contract in a way that mitigates their risk in order to provide a service and another party signs the contract to recieve the service with understanding that the benefits are worth the risk of dealing with an entity that has significantly more power then they do. I could argue the person was misniformed and mislead into signing an agreement with a relgious organization and should be free from the contract... but I could make the same argument for student loans, credit cards, mortgages, etc. I can see value, and certainly abuse, in people agreeing to allow their religious organizations to arbitrate civil disputes... it would seem that people should be allowed to make the choice and suffer the consequences if the agreement is within the established law.
- spott 11y ago
  Legally, I think arbitration clauses probably will hold up. As you said, both parties have agreed to them. The problem is that, currently, I can't get wireless from Sprint, ATT or Verizon without signing away my right to sue. If this is the case, I feel like I have been forced into signing an arbitration clause (I don't really have a choice not to have a phone). Comcast allows me to opt out (though at the time I didn't realize this was an option). At what point am I no longer able to make a choice to live a life without entering into an arbitration agreement with someone, and if that point comes, have my rights been violated? Technically, I've entered into a contract for a service. However, if every contract for that service includes an arbitration clause, I no longer have a choice, and I haven't really "opted in" to the arbitration process, because I can't "opt out". I'm pretty sure this isn't a valid legal argument, but that doesn't make it right. At the very least, controls need to be put into place to make sure that arbitration is neutral: otherwise the clauses are similar to a clause that says "if you wish to sue us, we win by default: tough shit", which feels like it should be illegal (or unenforceable).
- notdonspaulding 11y ago
  More than anything, the cases show the power of arbitration clauses. Perfect pull quote. The article buries the lead by putting this line so far down in the body. The article cherry-picks a few religious examples to support the headline, but there's nothing inherently religious about arbitration clauses. If they are infringing on the rule of law, this article hasn't demonstrated how.
clock_tower 11y ago
The Vikings tried that, but they found that in practice, most of the time the more competent swordsman won. There were professional duelists who made a career of going around the Nordic world, making fake claims on farmers' land and challenging them to trial by combat to determine who was the rightful owner... You might get more interesting results if both sides had to be represented by a duelist of equivalent skill. ("If you cannot afford a champion, one will be appointed for you by the court"?)
Apocryphon 11y ago
Arbitration by combat exists. It's called war.

If arbitration proceedings grounded in superstition and other tomfoolery (i.e., Scientology) hold up, it seems like anything will. I think there needs to be an 'arbitration by combat' service.

sp332 11y ago

More than anything, the cases show the power of arbitration clauses. If you sign a contract with someone with one of these clauses, you have legally opted-in to the arbitration process. I'm against drive-by EULA's, but other than that I can't really see a reason not to uphold them.

scott_s 11y ago
I also don't have a legal argument against it. But it deeply violates my sense of fairness that one cannot appeal to the actual courts, and must participate in religious-based courts, even if such courts will be obviously biased against you.
- KevinEldon 11y ago
  I believe, at least in the US, the ideas it that arbitration is for civil dispustes, not criminal disputes. I believe your concern is that a person will be dealt with unfairly in a civil dispute... I would argue that if any arbitration clause for civil issues is to be upheld then it must be upheld for all of these agreements where there is no criminal issue; otherwise the party that feels they will do better outside of arbitration will always choose to not use arbitration regardless of their prior agreement... that seems unfair to me; to go back on the original agreement.
  - scott_s 11y ago
    This article is part of a larger series by the NYT on the rise of arbitration: http://www.nytimes.com/2015/11/01/business/dealbook/arbitration-everywhere-stacking-the-deck-of-justice.html http://www.nytimes.com/2015/11/01/business/dealbook/arbitrat... The difficulty is when there is a power asymmetry in the original agreement, as there normally is when it's an individual signing a contract with a larger organization. Two large companies agreed to arbitration? Stick to the original agreement, as both sides paid lawyers to advise them on what to do, and there was almost certainly a negotiation. But individuals don't, usually, have the resources to hire lawyers or the ability to do the kinds of negotiations required to get favorable contracts. In such situations, I am troubled that we can end up signing away our ability to appeal to the courts to intervene on our behalf. If this issue gets enough press for a long enough time, I could see legislation that voids arbitration clauses in certain cases.
    - KevinEldon 11y ago
      I have not read the entire series so I may be misnifored or speaking to other topics covered in the series, but I think many if not the majority of contracts are signed between parties with power asymmetry. One party write a standard contract in a way that mitigates their risk in order to provide a service and another party signs the contract to recieve the service with understanding that the benefits are worth the risk of dealing with an entity that has significantly more power then they do. I could argue the person was misniformed and mislead into signing an agreement with a relgious organization and should be free from the contract... but I could make the same argument for student loans, credit cards, mortgages, etc. I can see value, and certainly abuse, in people agreeing to allow their religious organizations to arbitrate civil disputes... it would seem that people should be allowed to make the choice and suffer the consequences if the agreement is within the established law.
spott 11y ago
Legally, I think arbitration clauses probably will hold up. As you said, both parties have agreed to them. The problem is that, currently, I can't get wireless from Sprint, ATT or Verizon without signing away my right to sue. If this is the case, I feel like I have been forced into signing an arbitration clause (I don't really have a choice not to have a phone). Comcast allows me to opt out (though at the time I didn't realize this was an option). At what point am I no longer able to make a choice to live a life without entering into an arbitration agreement with someone, and if that point comes, have my rights been violated? Technically, I've entered into a contract for a service. However, if every contract for that service includes an arbitration clause, I no longer have a choice, and I haven't really "opted in" to the arbitration process, because I can't "opt out". I'm pretty sure this isn't a valid legal argument, but that doesn't make it right. At the very least, controls need to be put into place to make sure that arbitration is neutral: otherwise the clauses are similar to a clause that says "if you wish to sue us, we win by default: tough shit", which feels like it should be illegal (or unenforceable).
notdonspaulding 11y ago
More than anything, the cases show the power of arbitration clauses. Perfect pull quote. The article buries the lead by putting this line so far down in the body. The article cherry-picks a few religious examples to support the headline, but there's nothing inherently religious about arbitration clauses. If they are infringing on the rule of law, this article hasn't demonstrated how.

clock_tower 11y ago

The Vikings tried that, but they found that in practice, most of the time the more competent swordsman won. There were professional duelists who made a career of going around the Nordic world, making fake claims on farmers' land and challenging them to trial by combat to determine who was the rightful owner... You might get more interesting results if both sides had to be represented by a duelist of equivalent skill. ("If you cannot afford a champion, one will be appointed for you by the court"?)

Apocryphon 11y ago

Arbitration by combat exists. It's called war.