5 ms·

This is really, really disappointing. Contracts are supposed to be fair for both sides. In isolation, meaning for one specific purchase or one specific job, the

This is really, really disappointing. Contracts are supposed to be fair for both sides. In isolation, meaning for one specific purchase or one specific job, they are. But what happens when every company and employer has this language in their contracts? What do they lose by including the language? They lose nothing!

nathanaldensr 8y ago
Replying to myself: Think about how many transactions--i.e., in legal terms, a contract--you participate in every day. Now imagine that every one of those contracts forced on you to essentially give up your access to the court system for resolving grievances with private companies. That's where I believe we're heading, especially now that it seems like the issue has been officially resolved (at least for jobs). It's really scary.
- s2g 8y ago
  Absolutely. The 7th amendment is dead.
koolba 8y ago
This isn't disappointing at all as it reflects the state of the laws as they're currently on the books. Desiring or determining a court ruling based upon what you'd like the law to be rather than how it's currently written opens the door for legislation from the bench. If workers want the law changed to ban arbitration clauses then they should ask their representatives to pass legislation to do exactly that. And if said representatives won't do so then they should elect someone else next election cycle who will.
- giobox 8y ago
  Given the US is a common law system, whats "on the books" and "how it's currently written" is only part of the story - precedent established in prior cases is another large deciding factor in what the law "is", and judges have a fair degree of latitude to adapt interpretation in this regard. Interpretation is not static either. > opens the door for legislation from the bench In common law systems, indirectly this is what happens and has done for centuries. Through interpretation of statute and binding precedent, the bench does get to help define, albeit in far more limited fashion than the legislature, what "the law" is in a common law system. This is one reason why lawyers have to examine both the statute _and_ the case law. Disappointing is the right word.
- latortuga 8y ago
  Okay sure. But don't lose track of reality in your quest for idealism though. There is a vast power imbalance between worker and corporation, both money and power. Businesses control the contracts, they have far more money, and, as a result, they have vastly more powerful lobbying. So in practice, there is no defense for workers anywhere! Kicking the can to "elect someone else" is just as naive as claiming that this decision respects the law on the books.
  - gowld 8y ago
    Your concern is valid, and is the domain of anti-trust law.
  - bhups 8y ago
    > Kicking the can to "elect someone else" is just as naive as claiming that this decision respects the law on the books. But...it does respect the law on the books. Your concern seems to be that the law is bad, and that the judiciary ought to change that law. I don't think there's a lot of disagreement about the former, it's the latter that's more controversial. From an idealistic standpoint, enacting Federal law is necessarily onerous, owing to the requirement of a strong consensus so as to prevent a marginal majority from shoving Federal laws down the throat of a large minority. > Okay sure. But don't lose track of reality in your quest for idealism though. Okay sure, it sounds like you don't care much for the idealistic standpoint, so let's talk pragmatism. If we can't gather this consensus at the Federal level, we have the levers of state legislatures to pass those same laws at a more local level. Liberal states have the political will, the systems, and (if we're being frank) the majority of businesses that would be affected by Federal law anyway. They just need to have the will and pragmatism to compromise and pass their desired law at the state level until such a time that there's Federal consensus for that law.
    - s73v3r_ 8y ago
      "But...it does respect the law on the books." No, it absolutely does not. It completely makes up a reason why this should be considered any different than any other instance where things have changed since a law was enacted.
- cookiecaper 8y ago
  We have a system that operates at the pace of 1776. That served us well for a long time, but since the post-war proliferation of mass media, it's hard to argue that it's adequate anymore. You're right that people don't understand the way the separation of powers works, but the system badly needs to be revised. The world has totally transformed in the last 75 years and it's much smaller now. Political and legal feedback loops need to become much more responsive. One can see how it all worked when it would take weeks or months to get news of things like national election results, and when most people lived mostly self-sufficient agrarian lifestyles, but we don't live in that world anymore. Our entire political system, including the functional ability for normal private individuals to seek and obtain useful legal relief, has ground to a halt over the last several decades. Technology has made the old methods increasingly bad fits for the modern era. It'd be great if we could renovate the system before we fully convince the populace that the elements of good governance, like separation of powers and an independent judiciary, are necessarily linked to stunning and clear deprivations of fairness (of which binding arbitration is just one good example).
  - gowld 8y ago
    We must occasionally remind ourselves that the Supreme Court ruled to uphold slavery, so injustice under law is not a recent phenomenon.
  - bhups 8y ago
    > We have a system that operates at the pace of 1776. That served us well for a long time, but since the post-war proliferation of mass media, it's hard to argue that it's adequate anymore. I'd argue the exact opposite. The pace of our system is just a reflection of the current ideological polarization. Enacting Federal law requires a strong consensus (to prevent abuse), and the more polarized we are, the more difficult it becomes to shove Federal laws down the throat of a narrow minority. If we can't gather this consensus at the Federal level, we have the levers of state legislatures to pass those same laws at a more local level. Liberal states have the political will, the systems, and (if we're being frank) the majority of businesses that would be affected by Federal law anyway. They just need to have the will to compromise and pass their desired law at the state level until such a time that there's Federal consensus for that law.
- magicalist 8y ago
  In addition to giobox's points, > This isn't disappointing at all as it reflects the state of the laws as they're currently on the books. 4 out of 9 supreme court justices disagree with the ruling, so this really isn't the narrative to go with.
  - s2g 8y ago
    Kind of sad that if it's fucking people over in favor of corportations, you can always guess the 4.
rayiner 8y ago
> Contracts are supposed to be fair for both sides. That's not really a prerequisite for contracts. Contracts will often reflect substantial negotiating leverage on one side versus the other (e.g. a contract for sale of a house where the seller just lost his job, or a contract for sale of stock where the seller really needs money due to an unforeseen emergency). That's not a reason not to enforce them.
- rocqua 8y ago
  AFAIK there are limits to that. Certainly, contracts are required to be reciprocal. That is, one cannot write a contract that states A gives stuff to B, without requiring B to give some form of compensation. This is why things are sometimes sold for $1 rather than gifted. I think there are also 'no contracts can be made under duress' clauses that limit how much one can use leverage to unbalance a deal. Not sure what kind of limits there are to that though.
  - emaginniss 8y ago
    That's called "consideration" and it's to prevent a contract where only one side is being obligated to do something.
    - s73v3r_ 8y ago
      Except the court has also ruled that simply keeping your job is sufficient "consideration".
Karishma1234 8y ago
The verdict seems very consistent with the existing laws while many believe it is unfair. But these are two separate things. Workers should petition their representatives to pass laws that will help them bring fairness and the courts will then have to look at the issue freshly. > But what happens when every company and employer has this language in their contracts? What do they lose by including the language? They lose nothing! That is not true. Arbitration does not come free and not necessarily always in favour of the employer either. Which of the following would you prefer ? 1. Pay a monthly fee of $25 and whenever you get a traffic ticket you don't have to pay it 40% of the times. 2. Pay a traffic ticket only if you get it. Every single car I have purchased made me sign similar agreement and I know at least one car dealer who got sued and lost pretty badly.
- Analemma_ 8y ago
  > "not necessarily always in favour of the employer" You're not really helping your case here if this is the strongest statement you can make in arbitration's favor – "you're not necessarily fucked!". The New York Times ran a series about binding arbitration a while back, and a running theme was that arbitrators who repeatedly rule in favor of individuals quickly find themselves getting no more business, as you'd expect. Thus, the incentives of arbitrators are strongly skewed to favor employers (even if not at the individual level, then definitely at the ecosystem level via selection pressure) and I don't believe for a microsecond that their decisions are fair and reasonable.
- s73v3r_ 8y ago
  "The verdict seems very consistent with the existing laws " How can it be consistent with existing laws if the laws never mentioned arbitration at the time?
secabeen 8y ago
Would it work to ban required arbitration agreements in contracts of Adhesion? That seems like a nice, simple solution.

nathanaldensr 8y ago

Replying to myself: Think about how many transactions--i.e., in legal terms, a contract--you participate in every day. Now imagine that every one of those contracts forced on you to essentially give up your access to the court system for resolving grievances with private companies. That's where I believe we're heading, especially now that it seems like the issue has been officially resolved (at least for jobs). It's really scary.

s2g 8y ago
Absolutely. The 7th amendment is dead.

koolba 8y ago

This isn't disappointing at all as it reflects the state of the laws as they're currently on the books. Desiring or determining a court ruling based upon what you'd like the law to be rather than how it's currently written opens the door for legislation from the bench. If workers want the law changed to ban arbitration clauses then they should ask their representatives to pass legislation to do exactly that. And if said representatives won't do so then they should elect someone else next election cycle who will.

giobox 8y ago
Given the US is a common law system, whats "on the books" and "how it's currently written" is only part of the story - precedent established in prior cases is another large deciding factor in what the law "is", and judges have a fair degree of latitude to adapt interpretation in this regard. Interpretation is not static either. > opens the door for legislation from the bench In common law systems, indirectly this is what happens and has done for centuries. Through interpretation of statute and binding precedent, the bench does get to help define, albeit in far more limited fashion than the legislature, what "the law" is in a common law system. This is one reason why lawyers have to examine both the statute _and_ the case law. Disappointing is the right word.
latortuga 8y ago
Okay sure. But don't lose track of reality in your quest for idealism though. There is a vast power imbalance between worker and corporation, both money and power. Businesses control the contracts, they have far more money, and, as a result, they have vastly more powerful lobbying. So in practice, there is no defense for workers anywhere! Kicking the can to "elect someone else" is just as naive as claiming that this decision respects the law on the books.
- gowld 8y ago
  Your concern is valid, and is the domain of anti-trust law.
- bhups 8y ago
  > Kicking the can to "elect someone else" is just as naive as claiming that this decision respects the law on the books. But...it does respect the law on the books. Your concern seems to be that the law is bad, and that the judiciary ought to change that law. I don't think there's a lot of disagreement about the former, it's the latter that's more controversial. From an idealistic standpoint, enacting Federal law is necessarily onerous, owing to the requirement of a strong consensus so as to prevent a marginal majority from shoving Federal laws down the throat of a large minority. > Okay sure. But don't lose track of reality in your quest for idealism though. Okay sure, it sounds like you don't care much for the idealistic standpoint, so let's talk pragmatism. If we can't gather this consensus at the Federal level, we have the levers of state legislatures to pass those same laws at a more local level. Liberal states have the political will, the systems, and (if we're being frank) the majority of businesses that would be affected by Federal law anyway. They just need to have the will and pragmatism to compromise and pass their desired law at the state level until such a time that there's Federal consensus for that law.
  - s73v3r_ 8y ago
    "But...it does respect the law on the books." No, it absolutely does not. It completely makes up a reason why this should be considered any different than any other instance where things have changed since a law was enacted.
cookiecaper 8y ago
We have a system that operates at the pace of 1776. That served us well for a long time, but since the post-war proliferation of mass media, it's hard to argue that it's adequate anymore. You're right that people don't understand the way the separation of powers works, but the system badly needs to be revised. The world has totally transformed in the last 75 years and it's much smaller now. Political and legal feedback loops need to become much more responsive. One can see how it all worked when it would take weeks or months to get news of things like national election results, and when most people lived mostly self-sufficient agrarian lifestyles, but we don't live in that world anymore. Our entire political system, including the functional ability for normal private individuals to seek and obtain useful legal relief, has ground to a halt over the last several decades. Technology has made the old methods increasingly bad fits for the modern era. It'd be great if we could renovate the system before we fully convince the populace that the elements of good governance, like separation of powers and an independent judiciary, are necessarily linked to stunning and clear deprivations of fairness (of which binding arbitration is just one good example).
- gowld 8y ago
  We must occasionally remind ourselves that the Supreme Court ruled to uphold slavery, so injustice under law is not a recent phenomenon.
- bhups 8y ago
  > We have a system that operates at the pace of 1776. That served us well for a long time, but since the post-war proliferation of mass media, it's hard to argue that it's adequate anymore. I'd argue the exact opposite. The pace of our system is just a reflection of the current ideological polarization. Enacting Federal law requires a strong consensus (to prevent abuse), and the more polarized we are, the more difficult it becomes to shove Federal laws down the throat of a narrow minority. If we can't gather this consensus at the Federal level, we have the levers of state legislatures to pass those same laws at a more local level. Liberal states have the political will, the systems, and (if we're being frank) the majority of businesses that would be affected by Federal law anyway. They just need to have the will to compromise and pass their desired law at the state level until such a time that there's Federal consensus for that law.
magicalist 8y ago
In addition to giobox's points, > This isn't disappointing at all as it reflects the state of the laws as they're currently on the books. 4 out of 9 supreme court justices disagree with the ruling, so this really isn't the narrative to go with.
- s2g 8y ago
  Kind of sad that if it's fucking people over in favor of corportations, you can always guess the 4.

rayiner 8y ago

> Contracts are supposed to be fair for both sides. That's not really a prerequisite for contracts. Contracts will often reflect substantial negotiating leverage on one side versus the other (e.g. a contract for sale of a house where the seller just lost his job, or a contract for sale of stock where the seller really needs money due to an unforeseen emergency). That's not a reason not to enforce them.

rocqua 8y ago
AFAIK there are limits to that. Certainly, contracts are required to be reciprocal. That is, one cannot write a contract that states A gives stuff to B, without requiring B to give some form of compensation. This is why things are sometimes sold for $1 rather than gifted. I think there are also 'no contracts can be made under duress' clauses that limit how much one can use leverage to unbalance a deal. Not sure what kind of limits there are to that though.
- emaginniss 8y ago
  That's called "consideration" and it's to prevent a contract where only one side is being obligated to do something.
  - s73v3r_ 8y ago
    Except the court has also ruled that simply keeping your job is sufficient "consideration".

Karishma1234 8y ago

The verdict seems very consistent with the existing laws while many believe it is unfair. But these are two separate things. Workers should petition their representatives to pass laws that will help them bring fairness and the courts will then have to look at the issue freshly. > But what happens when every company and employer has this language in their contracts? What do they lose by including the language? They lose nothing! That is not true. Arbitration does not come free and not necessarily always in favour of the employer either. Which of the following would you prefer ? 1. Pay a monthly fee of $25 and whenever you get a traffic ticket you don't have to pay it 40% of the times. 2. Pay a traffic ticket only if you get it. Every single car I have purchased made me sign similar agreement and I know at least one car dealer who got sued and lost pretty badly.

Analemma_ 8y ago
> "not necessarily always in favour of the employer" You're not really helping your case here if this is the strongest statement you can make in arbitration's favor – "you're not necessarily fucked!". The New York Times ran a series about binding arbitration a while back, and a running theme was that arbitrators who repeatedly rule in favor of individuals quickly find themselves getting no more business, as you'd expect. Thus, the incentives of arbitrators are strongly skewed to favor employers (even if not at the individual level, then definitely at the ecosystem level via selection pressure) and I don't believe for a microsecond that their decisions are fair and reasonable.
s73v3r_ 8y ago
"The verdict seems very consistent with the existing laws " How can it be consistent with existing laws if the laws never mentioned arbitration at the time?

secabeen 8y ago

Would it work to ban required arbitration agreements in contracts of Adhesion? That seems like a nice, simple solution.