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This is true, mandatory arbitration makes mockery of the legal system. But... the whole arbitration thing is itself a reaction (in many cases^) to general suck

This is true, mandatory arbitration makes mockery of the legal system. But... the whole arbitration thing is itself a reaction (in many cases^) to general suckness of the legal system which is primitive, clunky, slow and often more trouble then the trouble it's trying to solve. It's wide open to abuse, and a lot of what we call law is in practice a mature "game" based on abuse of the legal system. So, yep.. these should be ilegal. But we also need a legal system capable of functional resolution of these disputes fast, without abuses, mutual destruction stalemates and burdensome "costs" including eventualities such as "as an employer, you will always be in labour court no matter what." That said, sexual harassment in the workplace is an "our vision of society" type of problem. There's a case for giving it it's own courts or public dispute resolution frameworks. Law really needs to evolve. We are not settling disputes between norman kings and saxon lords any more. ^sometimes it's just naked self interest. Ie, We will win more often in private arbitration, so let's write it into the contract and hope they don't notice or are not in a position to object .

scrupt 8y ago
That said, sexual harassment in the workplace is an "our vision of society" type of problem. Please elaborate.
apendleton 8y ago
> Law really needs to evolve. We are not settling disputes between norman kings and saxon lords any more. I agree, but funnily, I think the thing the legal system would evolve into in order to facilitate "functional resolution of these disputes fast, without abuses, mutual destruction stalemates" etc. would end up looking a lot like independent binding arbitration.
rayiner 8y ago
> But... the whole arbitration thing is itself a reaction (in many cases^) to general suckness of the legal system which is primitive, clunky, slow and often more trouble then the trouble it's trying to solve. It's wide open to abuse, and a lot of what we call law is in practice a mature "game" based on abuse of the legal system. Maybe. It's interesting to note that businesses still prefer court to arbitration in their disputes with each other. https://www.nytimes.com/2008/10/06/business/06arbitrate.html https://www.nytimes.com/2008/10/06/business/06arbitrate.html. And business-to-business arbitrations tend to have many of the procedures (and expense) of litigation--lawyers, briefing, hearings, etc. The biggest advantage is that arbitration can be lot faster, because the civil court system is so overloaded with cases.
- dctoedt 8y ago
  > And business-to-business arbitrations tend to have many of the procedures (and expense) of litigation--lawyers, briefing, hearings, etc. One respected scholar, Prof. Tom Stipanowich, suggests that this is because lawyers have incentives to import familiar and expensive procedures from litigation (because they hate to lose and therefore want all the discovery and motion practice that they can get), and arbitrators have incentives not to push back too hard against these lawyers (because lawyers can object to the appointment of an arbitrator, and so arbitrators don't want to develop a reputation among lawyers as "difficult"). [0] [0] https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1297526 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1297526
  - rayiner 8y ago
    I suspect that's part of it too; in house counsel are surprisingly (or maybe not unsurprisingly) not big on change.
    - dctoedt 8y ago
      Agreed; it's a variation on "Nobody ever got fired for buying IBM." (I realize I'm dating myself.)
howard941 8y ago
> Law really needs to evolve. Or at least updated to protect against modern abuses such as purchased adjudicators and unconscionably forced waivers of a meaningful right to argue for relief before a real court. The federal bit of alternative dispute resolution doctrine responsible for this mockery dates all the way back to the 1920s and desperately is in need of a revisit.
vinceguidry 8y ago
> Law really needs to evolve. When I see a wish for something to 'evolve', I generally can substitute "get society to devote an order of magnitude more resources to," and arrive at a better description of what's actually being wished for. Education needs to evolve, our prison system needs to evolve. But the signs of evolution are already there. Arbitration is precisely a legal evolution. Private prisons and schools are evolutions of their respective institutions as well. The problem is that they don't solve the resource scarcity that is really wished for. People generally don't want to settle for an evolved solution, they want someone else to pay so that they can take advantage of the one that's already there that we know does a good job. The only fix here is to have fewer, but better institutions, and for them to focus their efforts on engineering, not innovation. What's a model for introducing private entities into public spheres that actually drives better outcomes? I would bet that Europe offers many interesting examples to base policy on, but our current political climate seems too caustic to make progress on.
- airstrike 8y ago
  IANAL but > > Law really needs to evolve. > When I see a wish for something to 'evolve', I generally can substitute "get society to devote an order of magnitude more resources to," and arrive at a better description of what's actually being wished for. The thing about Law is that you can just look at what other countries are doing and think about whether that's an improvement over the status quo. In certain jurisdictions (I'd wager in most developed countries), relationships that are inherently unequal (i.e. in which one party is significantly more vulnerable than the other) -- such as customer vs. company or employee vs. employer -- are protected by rules that are also unequal in nature. The burden of proof usually lies on the stronger party, and certain protections are awarded only to the weaker party. The underlying principle that companies and people must be treated differently when contracting also applies to other interactions. In certain jurisdictions, EULAs are virtually worthless because you can't assume a reasonable customer would read all the legalese in those documents, let alone understand it. Therefore, even if users click or sign a piece of paper saying "they agree and understand", that acknowledgement is worthless. Instead, they are judged against what you'd expect a "reasonable, average person" to believe constitutes appropriate use. Again, IANAL so I'm being very vague on details, but my point is that we don't necessarily need "to devote an order of magnitude more resources". And for that matter, even if we did, that doesn't mean it wouldn't be preferable to do so.
trhway 8y ago
>we also need a legal system capable of functional resolution of these disputes fast, without abuses, mutual destruction stalemates and burdensome "costs" i think there should be at least a couple additional levels between small claims and full blown court. The lack of those levels is what arbitration mostly trying to fill. Wrt. the original issue of forced sexual harassment arbitration i guess Uber is just trying to get a good PR while it can - federals, NY, CA and a bunch of other states are coming with legislation outlawing it : https://www.jdsupra.com/legalnews/state-legislatures-tackle-sexual-85983/ https://www.jdsupra.com/legalnews/state-legislatures-tackle-...
- Lionsion 8y ago
  > i think there should be at least a couple additional levels between small claims and full blown court. The lack of those levels is what arbitration mostly trying to fill. I think at this point, in most cases, arbitration is meant to fill the role of 1. keeping PR problems hidden (such as sexual harassment, etc) by keeping them out of open court, and 2. a way of practically eliminating legal liability by stopping class action lawsuits. I don't think those entities that deploy arbitration on a mass scale really care about the efficiency of the court system at all.

scrupt 8y ago

That said, sexual harassment in the workplace is an "our vision of society" type of problem. Please elaborate.

apendleton 8y ago

> Law really needs to evolve. We are not settling disputes between norman kings and saxon lords any more. I agree, but funnily, I think the thing the legal system would evolve into in order to facilitate "functional resolution of these disputes fast, without abuses, mutual destruction stalemates" etc. would end up looking a lot like independent binding arbitration.

rayiner 8y ago

> But... the whole arbitration thing is itself a reaction (in many cases^) to general suckness of the legal system which is primitive, clunky, slow and often more trouble then the trouble it's trying to solve. It's wide open to abuse, and a lot of what we call law is in practice a mature "game" based on abuse of the legal system. Maybe. It's interesting to note that businesses still prefer court to arbitration in their disputes with each other. https://www.nytimes.com/2008/10/06/business/06arbitrate.html https://www.nytimes.com/2008/10/06/business/06arbitrate.html. And business-to-business arbitrations tend to have many of the procedures (and expense) of litigation--lawyers, briefing, hearings, etc. The biggest advantage is that arbitration can be lot faster, because the civil court system is so overloaded with cases.

dctoedt 8y ago
> And business-to-business arbitrations tend to have many of the procedures (and expense) of litigation--lawyers, briefing, hearings, etc. One respected scholar, Prof. Tom Stipanowich, suggests that this is because lawyers have incentives to import familiar and expensive procedures from litigation (because they hate to lose and therefore want all the discovery and motion practice that they can get), and arbitrators have incentives not to push back too hard against these lawyers (because lawyers can object to the appointment of an arbitrator, and so arbitrators don't want to develop a reputation among lawyers as "difficult"). [0] [0] https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1297526 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1297526
- rayiner 8y ago
  I suspect that's part of it too; in house counsel are surprisingly (or maybe not unsurprisingly) not big on change.
  - dctoedt 8y ago
    Agreed; it's a variation on "Nobody ever got fired for buying IBM." (I realize I'm dating myself.)

howard941 8y ago

> Law really needs to evolve. Or at least updated to protect against modern abuses such as purchased adjudicators and unconscionably forced waivers of a meaningful right to argue for relief before a real court. The federal bit of alternative dispute resolution doctrine responsible for this mockery dates all the way back to the 1920s and desperately is in need of a revisit.

vinceguidry 8y ago

> Law really needs to evolve. When I see a wish for something to 'evolve', I generally can substitute "get society to devote an order of magnitude more resources to," and arrive at a better description of what's actually being wished for. Education needs to evolve, our prison system needs to evolve. But the signs of evolution are already there. Arbitration is precisely a legal evolution. Private prisons and schools are evolutions of their respective institutions as well. The problem is that they don't solve the resource scarcity that is really wished for. People generally don't want to settle for an evolved solution, they want someone else to pay so that they can take advantage of the one that's already there that we know does a good job. The only fix here is to have fewer, but better institutions, and for them to focus their efforts on engineering, not innovation. What's a model for introducing private entities into public spheres that actually drives better outcomes? I would bet that Europe offers many interesting examples to base policy on, but our current political climate seems too caustic to make progress on.

airstrike 8y ago
IANAL but > > Law really needs to evolve. > When I see a wish for something to 'evolve', I generally can substitute "get society to devote an order of magnitude more resources to," and arrive at a better description of what's actually being wished for. The thing about Law is that you can just look at what other countries are doing and think about whether that's an improvement over the status quo. In certain jurisdictions (I'd wager in most developed countries), relationships that are inherently unequal (i.e. in which one party is significantly more vulnerable than the other) -- such as customer vs. company or employee vs. employer -- are protected by rules that are also unequal in nature. The burden of proof usually lies on the stronger party, and certain protections are awarded only to the weaker party. The underlying principle that companies and people must be treated differently when contracting also applies to other interactions. In certain jurisdictions, EULAs are virtually worthless because you can't assume a reasonable customer would read all the legalese in those documents, let alone understand it. Therefore, even if users click or sign a piece of paper saying "they agree and understand", that acknowledgement is worthless. Instead, they are judged against what you'd expect a "reasonable, average person" to believe constitutes appropriate use. Again, IANAL so I'm being very vague on details, but my point is that we don't necessarily need "to devote an order of magnitude more resources". And for that matter, even if we did, that doesn't mean it wouldn't be preferable to do so.

trhway 8y ago

>we also need a legal system capable of functional resolution of these disputes fast, without abuses, mutual destruction stalemates and burdensome "costs" i think there should be at least a couple additional levels between small claims and full blown court. The lack of those levels is what arbitration mostly trying to fill. Wrt. the original issue of forced sexual harassment arbitration i guess Uber is just trying to get a good PR while it can - federals, NY, CA and a bunch of other states are coming with legislation outlawing it : https://www.jdsupra.com/legalnews/state-legislatures-tackle-sexual-85983/ https://www.jdsupra.com/legalnews/state-legislatures-tackle-...

Lionsion 8y ago
> i think there should be at least a couple additional levels between small claims and full blown court. The lack of those levels is what arbitration mostly trying to fill. I think at this point, in most cases, arbitration is meant to fill the role of 1. keeping PR problems hidden (such as sexual harassment, etc) by keeping them out of open court, and 2. a way of practically eliminating legal liability by stopping class action lawsuits. I don't think those entities that deploy arbitration on a mass scale really care about the efficiency of the court system at all.