12 ms·

He lost because of a forced arbitration clause. This massive privatization of justice where any boilerplate service or product now comes with forced arbitration

He lost because of a forced arbitration clause. This massive privatization of justice where any boilerplate service or product now comes with forced arbitration is making my blood boil. The justice system should always be an option when arbitration fails, and arbitration should take no more than a reasonable time to fail (say, two weeks for this $5000 amount). The whole point of a small claims court is to handle such cases, not offload them to a dodgy corporate lawyer masquerading as a judge. If the public service of justice is slow and expensive, we need to fix the public service, not replace it with a free market simulacrum. That's always the case with non marketable but essential public goods.

TimTheTinker 8y ago
> If the public service of justice is slow and expensive, we need to fix the public service, not replace it with a free market simulacrum. Completely agreed. Prisons are another example of an essential public service that should never be privatized or outsourced.
- inetknght 8y ago
  Healthcare, too
  - deleted 8y ago
    [deleted]
  - DaiPlusPlus 8y ago
    That’s a blanket statement that leaves too much wiggle-room. The UK’s NHS, for example, is partly private insofar as GPs and many other doctors work for themselves and contract themselves out to the NHS instead of being NHS employees. Correct me if I’m wrong, but a group of doctors could form an organization that forces its patients into binding arbitration for disputes while still being contracted to the NHS. It would result in a backlash of public opinion - but still possible. The NHS also has other private components: it used to run its own logistics division which was scrapped in recent years and replaced with services provided by couriers like DHL.
    - dragonwriter 8y ago
      > Correct me if I’m wrong, but a group of doctors could form an organization that forces its patients into binding arbitration for disputes while still being contracted to the NHS. Could they? I thought the doctor's contract is with the NHS on standard government terms, and the patients are dealing with the NHS terms, the doctors have no direct contract with the patients or ability to impose legal terms on the patients differing from the NHS terms.
      - gpderetta 8y ago
        Also European consumer protection laws make it very hard to enforce binding arbitration clauses in contracts.
        TimTheTinker 8y ago
        I wish it were this way in the US. Way to nullify habeas corpus... :-(
  - cabaalis 8y ago
    Transportation. Communication. Food. See? I can do it too. The idea of non-privatizing things has to pass tests other than just "Everyone needs it."
    - maxsilver 8y ago
      > Transportation. Communication. Food. See? I can do it too. The idea of non-privatizing things has to pass tests other than just "Everyone needs it." Does it? Why? I'm 100% for all of the items you mentioned -- public transportation, public communication, and public food. Arguably we pay for crappier versions of all of those already (Busses, Lifeline Program, SNAP and Bridges or your state's equivalent) -- You can be for "public services that should never be privatized or outsourced", and still allow private services to exist too. That's not a conflict in any way. (I'm aware of the letter ban) but a public USPS for package delivery, doesn't prevent FedEx from also delivering packages too. A public water utility doesn't prevent Nestle from also selling bottled water everywhere. Public elementary schools hasn't prevented private/religious schools from also existing in every state. PBS / BBC hasn't prevented NBC / ABC / CBS / Sky from existing. You can be pro "public utilities for things everyone needs, ban privatization of public services" and that does not have to hurt any private companies in any way.
    - AngryData 8y ago
      I would have zero problem with those things being provided at the basic levels to everyone. No you aren't going to get t-bones, but some bread, eggs, potatoes, and shit? What is the problem there? They are already heavily subsidized industries to provide stability despite whatever else is happening in the markets, we aren't going to just stop growing them unless we are all dead.
    - inetknght 8y ago
      It's an opinion, man. How do I see if it passes this test without expressing it?
  - TimTheTinker 8y ago
    Government is and has always been about law -- creating law, executing law, interpreting law, and enforcing law. Healthcare doesn't have a natural, direct relationship to law like prisons and courts do.
    - dragonwriter 8y ago
      > Government is and has always been about law Government has always been about the legitimatized application of force; the use of law as one of the key components of the legitimization of force is very old, but not essential to the concept government (it's essential to modern, and even many older, norms or models of government, though.)
      - TimTheTinker 8y ago
        The principle of the rule of law says that all parties, even the government itself, are subject to the law. This would imply that any application of force on the government's part must only be done in the service of the law. This is how government ought to be, and has been at least several times in the last 1000 years. The Magna Carta is famous for first codifying the rule of law principle.
        genericid 8y ago
        If the principle of rule of law meant that a democratically elected government cannot use its powers to take care of its citizens, it would simply be a bad principle.
        TimTheTinker 8y ago
        A democratically elected legislature's job is to write the will of the people into law.
        AngryData 8y ago
        So if the people's will is guaranteed basic medical services available to all, I don't see what the problem there is.
amarkov 8y ago
But arbitration didn't fail here. He never tried it in the first place.
- caffeinewriter 8y ago
  Arguably he shouldn't have had to, since the arbitration clause appeared in the Terms of Service after he made his pledge. I have my own opinions about arbitration but that's neither here nor there when what you agreed to did not dictate that you must resolve disputes through arbitration.
  - dalore 8y ago
    But he has used the service since, making more pledges to other companies. Part of continuing to use kickstarter is to to accept the new TOS when they come out. If he made one pledge, and then never used or logged into kickstarter and agreed to a new TOS then he would have a case.
  - extrapickles 8y ago
    According to the article, he made a some of his pledges after the change to the Terms of Service. I can imagine that if they tried to get a refund somewhat close to the change, a judge could be convinced to allow the refund under the old ToS.
duxup 8y ago
I can't get phone or Internet in my area without some form of forced arbitration.....if I don't give up my rights to the court system for those services, I just don't get them. There is no option to simply not participate, it is absurd.
- kibwen 8y ago
  Have you tried asking your parents for an itsy-bitsy teensy-weensy million-dollar loan so you can found your own telecom?
  - lawlessone 8y ago
    A.K.A The Kardashian method to becoming self made.
  - duxup 8y ago
    Not asking my parents....but I have thought of it as a pie in the sky thing...
jellicle 8y ago
> If the public service of justice is slow and expensive Is small claims court slow and expensive? Not to my knowledge.
- pjc50 8y ago
  It's expensive for businesses because they tend to find in favour of the consumer, whereas with forced arbitration the business can pick the most biased arbitrator to rule in their favour.
  - jellicle 8y ago
    Well, okay. Right. I agree. I just don't want people reinforcing the meme that "justice is always slow and expensive and that's why businesses want arbitration" when the real reason is "courts are too fair and that's why businesses want arbitration". The accessibility, fairness, speed and low cost of small claims courts to poor individual litigants is a bug, not a feature, from the perspective of the US's larger corporations.
  - Karunamon 8y ago
    <comment class='devils-advocate'/> From what it seems like, most large companies tend to use the same few arbitration firms. JAMS and AAA come up often in the contracts I've read. How often does this "arbitrator shopping" actually happen? It's a complaint I hear often, but little in the way of data to support it. I have seen data to suggest that arbitrators rule often in the favor of the companies, but that could be a result of more people raising bullshit claims since it's significantly easier to do so.
    - pixl97 8y ago
      >om what it seems like, most large companies tend to use the same few arbitration firms Maybe the other arbitrators went out of business because they ruled on the consumer side. See: survivorship bias.
      - Karunamon 8y ago
gwern 8y ago
I'm more disturbed by the parts of the article which say that he never agreed to a forced arbitration clause in the first place because it wasn't in the ToS when he paid, but the judge decided to go with the later ToS anyway: > According to Lord, the terms of service when he made the initial pledge aren’t the same terms of service they are today. The original terms of service, according to RSI’s own records, make no mention of arbitration before February 2015. “These Terms of Service (TOS) do not affect any transactions made before its effective date,” RSI’s terms site said. “All prior transactions are governed by the TOS in effect on the date of such transactions.” > Lord came to court prepared. He had printed out multiple versions of the terms of service, all records of communication with RSI, and a long document recording the 77 promises RSI hasn’t fulfilled in a timely fashion, including citations showing where and when RSI made those promises. But the case never got that far. He said RSI’s representatives understood that Lord’s pledges weren’t covered by the arbitration clause, and he offered to settle, again, for $3,800. They declined. > According to Lord, when RSI’s representatives stood before the judge, they tried to argue the arbitration clause of their TOS. “Right off the bat, they assert the arbitration clause applied to everything, even though it plainly didn't,” Lord said. “I had to give the judge a copy of the first terms of services that clearly show that the arbitration clause was not there for the first few transactions.” > ...According to Lord, the judge decided to apply the current TOS to all of the transactions in dispute. “He said he didn’t want two rulings floating out there,” Lord said. He may have lost this case, but he’s not done fighting. “I’m going to pursue it further. I’m not sure in what direction. I’m going to be speaking with a couple of different attorneys to evaluate my options.” I mean... what? So even if you do exercise your choice as a consumer to avoid a forced-arbitration clause, companies can simply add it to their ToSes later on and retroactively make it apply to all interactions ever with the company?
- daburninatorrr 8y ago
  This is especially important, and I don't see anyone else here (at the moment of posting this) calling this out. This is a disastrous precedent to set for consumers, because it means that even though you are agreeing to terms on the date of the sale, those same terms of the sale can be changed on a moments notice and still affect you, without your knowledge or consent. It's a shame that he has to keep fighting this, but I would assume (edit: I should say, I really, really hope) that this decision will eventually be overturned.
throw2016 8y ago
This is a disturbing precedent and decision. Forced arbitration is a huge flag that severely dilutes consumer rights and makes a mockery of consumers and markets. This kind of precedent should not be allowed to stand but there is only so much time an individual who has to make a living can devote to these kind of issues. It's not like a corporation that has legal staff on board and can afford to litigate for years on end without any consequences for anyone involved, and if there is a fine at the end it gets paid.
jasonlotito 8y ago
> He lost because of a forced arbitration clause. Just to be clear, that doesn't mean he wouldn't have lost otherwise, or that forced arbitration wouldn't have worked in his favor. If forced arbitration wasn't a consideration, he might still have lost.
- kevin_b_er 8y ago
  Arbitration is a net loss for the human. The rulings are secret. The impersonal corporation knows which arbiters favor it and which do not, and can blacklist based on that. Arbiters only get work if they continue to rule for corporations. The corporation knows which arguments worked for it in the past with arbiters, but the judgements are secret and the human cannot research as a corporation can. Arbitration is a biased loss for a human up against a corporation in mandatory binding arbitration via a contract of adhesion.
  - jasonlotito 8y ago
    That's all beside the point.
    - salawat 8y ago
      No, that's all material to the point. It's the same type of thing that led to most IP cases being heard in a particular Circuit/District Court in Texas. When you as the consumer have nil input into establishing an impartial venue, and the COMPANY has an ongoing business relationship with the Arbiter on which the Arbiter depends it completely undermines the integrity of the proceedings. It's like asking your Mother in Law to preside over divorce proceedings. How is this so hard to understand? If a company can force you into that regime, and has all the bargaining power in the transaction, you are not at the table as equals. You are cattle. You are meant to consume and remain silent. Any complaints will be ignored in the order they are received. You can say that IDEALLY the Arbitration company runs arbitration for many other companies, so is an impartial body in this case. Losing this ONE business wouldn't hurt right? Except their bills ARE PAID by your opponent. You don't bite the hand that feeds. It's why the public justice system "works". If arbitration is so effective, it should be integrated into the public justice system and funded accordingly. Otherwise, it's your Civil Rights being discarded by corporate contract lawyers.
gascan 8y ago
If the public service of justice is slow and expensive, we need to fix the public service, not replace it with a free market simulacrum. The argument is that the justice system is slow and expensive because it is overloaded with cases that don't really belong in the justice system in the first place. Which is not a radical idea; e.g. only some cases merit the attention of a district court, and fewer still merit the SCOTUS. You can see the "overloading" perspective when you look at the asylum hearing backlog. The demand outstrips the judiciary's ability to run fair hearings practically to the point of absurdity.
- s73v3r_ 8y ago
  If arbitration really is a better solution, then people will choose to go that route themselves, instead of being forced into it by a company trying to get more favorable results.
ajross 8y ago
> If the public service of justice is slow and expensive, we need to fix the public service, The public service (small claims court) was present and used. He just didn't get the result he wanted. It's not like the "public service of justice" was evaded. He got a hearing. The judge (a real judge!) said the arbitration clause was enforceable. So he lost. In court. Having exercised his constitutional right to petition his government for redress of grievances. I mean, look: I get that arbitration clauses can be unfair. But that's not an indictment of arbitration, it's an indictment of unfair contracts. For every case like this that makes your blood boil there's one that throws out an arbitration clause that wasn't appropriate. The system works, basically. It just doesn't get this guy his $4500 back because he made a stupid bet on Kickstarter.
- s73v3r_ 8y ago
  No, he did not get his constitutional right to petition his government for redress. He was denied this because a company added a clause forcing people to go into the private justice system. A clause that never, ever, ever should be enforceable, because it is entirely unconscionable. The system did NOT work.
  - ABCLAW 8y ago
    Yes he did. He was denied his right to redress because the judge thought the case wasn't worth enough to be worth his time, wrote a very dismissive ruling and then hoped it wouldn't be appealed so his shitty ruling wouldn't be torn apart. This isn't a 'the sky is falling' situation. This is a judge cutting a corner to get to cases he views as more important.
- kevin_b_er 8y ago
  No. The judge announced that courts of law do not apply, only arbitration psuedocourts apply. Arbitration is no longer thrown out almost ever, because of ATT Mobility LLC v. Concepcion. An unconscionable contract with arbitration is not an exception to arbitration anymore and state laws no longer apply to arbitration compelled agreements. The arbiter will decide what, if any, laws to follow. The arbiter will decide if the contract is fair. The arbiter will decide if they even want to rule based on the dispute at hand or something arbitrary. You are behind the times on the sheer power of mandatory binding arbitration.
CryptoPunk 8y ago
No one is forcing you to use forced arbitration. You're not entitled to someone else's service. If you don't want to accept forced arbitration, then don't use their service. What you're really saying is that you want to prevent me from offering a service on the condition that contract disputes are handled by alternative dispute resolution mechanisms. This desire to impose restrictions on other people's free action is immoral, and doesn't become okay due to your anti-free-market ideology.
- acdha 8y ago
  This is a rather naive position which ignores the information and power disparities. The average person doesn’t have time to review every contract for everything they use, nor is it clear why this should be unlike every other thing you buy simply because it involves software, and there are whole sectors where the only option is not to have e.g. mobile phone service. It’s especially sad to see you trying to spin blocking someone’s ability to exercise their right to use the legal system as a pro-liberty move. At the least you can be honest and acknowledge that it’s about saving money.
  - CryptoPunk 8y ago
    What you're referring to is an entirely different issue, which is informed consent. If the contract is designed to get the user to quickly glance over it, and agree to unfair terms without understanding it, then yes it's unfair, and any properly functioning court system will void it. But that's a separate issue from the possibility of including arbitration clauses in a contract, which simply expands the range of possible contracts two consenting parties can enter into.
    - acdha 8y ago
      You don’t expand options by removing them. Being forced to use a company’s appeals process is a distinct reduction in freedom from the status quo.
      - CryptoPunk 8y ago

TimTheTinker 8y ago

> If the public service of justice is slow and expensive, we need to fix the public service, not replace it with a free market simulacrum. Completely agreed. Prisons are another example of an essential public service that should never be privatized or outsourced.

inetknght 8y ago
Healthcare, too
- deleted 8y ago
  [deleted]
- DaiPlusPlus 8y ago
  That’s a blanket statement that leaves too much wiggle-room. The UK’s NHS, for example, is partly private insofar as GPs and many other doctors work for themselves and contract themselves out to the NHS instead of being NHS employees. Correct me if I’m wrong, but a group of doctors could form an organization that forces its patients into binding arbitration for disputes while still being contracted to the NHS. It would result in a backlash of public opinion - but still possible. The NHS also has other private components: it used to run its own logistics division which was scrapped in recent years and replaced with services provided by couriers like DHL.
  - dragonwriter 8y ago
    > Correct me if I’m wrong, but a group of doctors could form an organization that forces its patients into binding arbitration for disputes while still being contracted to the NHS. Could they? I thought the doctor's contract is with the NHS on standard government terms, and the patients are dealing with the NHS terms, the doctors have no direct contract with the patients or ability to impose legal terms on the patients differing from the NHS terms.
    - gpderetta 8y ago
      Also European consumer protection laws make it very hard to enforce binding arbitration clauses in contracts.
      - TimTheTinker 8y ago
        I wish it were this way in the US. Way to nullify habeas corpus... :-(
- cabaalis 8y ago
  Transportation. Communication. Food. See? I can do it too. The idea of non-privatizing things has to pass tests other than just "Everyone needs it."
  - maxsilver 8y ago
    > Transportation. Communication. Food. See? I can do it too. The idea of non-privatizing things has to pass tests other than just "Everyone needs it." Does it? Why? I'm 100% for all of the items you mentioned -- public transportation, public communication, and public food. Arguably we pay for crappier versions of all of those already (Busses, Lifeline Program, SNAP and Bridges or your state's equivalent) -- You can be for "public services that should never be privatized or outsourced", and still allow private services to exist too. That's not a conflict in any way. (I'm aware of the letter ban) but a public USPS for package delivery, doesn't prevent FedEx from also delivering packages too. A public water utility doesn't prevent Nestle from also selling bottled water everywhere. Public elementary schools hasn't prevented private/religious schools from also existing in every state. PBS / BBC hasn't prevented NBC / ABC / CBS / Sky from existing. You can be pro "public utilities for things everyone needs, ban privatization of public services" and that does not have to hurt any private companies in any way.
  - AngryData 8y ago
    I would have zero problem with those things being provided at the basic levels to everyone. No you aren't going to get t-bones, but some bread, eggs, potatoes, and shit? What is the problem there? They are already heavily subsidized industries to provide stability despite whatever else is happening in the markets, we aren't going to just stop growing them unless we are all dead.
  - inetknght 8y ago
    It's an opinion, man. How do I see if it passes this test without expressing it?
- TimTheTinker 8y ago
  Government is and has always been about law -- creating law, executing law, interpreting law, and enforcing law. Healthcare doesn't have a natural, direct relationship to law like prisons and courts do.
  - dragonwriter 8y ago
    > Government is and has always been about law Government has always been about the legitimatized application of force; the use of law as one of the key components of the legitimization of force is very old, but not essential to the concept government (it's essential to modern, and even many older, norms or models of government, though.)
    - TimTheTinker 8y ago
      The principle of the rule of law says that all parties, even the government itself, are subject to the law. This would imply that any application of force on the government's part must only be done in the service of the law. This is how government ought to be, and has been at least several times in the last 1000 years. The Magna Carta is famous for first codifying the rule of law principle.
      - genericid 8y ago
        If the principle of rule of law meant that a democratically elected government cannot use its powers to take care of its citizens, it would simply be a bad principle.
        TimTheTinker 8y ago
        A democratically elected legislature's job is to write the will of the people into law.
        AngryData 8y ago
        So if the people's will is guaranteed basic medical services available to all, I don't see what the problem there is.

amarkov 8y ago

But arbitration didn't fail here. He never tried it in the first place.

caffeinewriter 8y ago
Arguably he shouldn't have had to, since the arbitration clause appeared in the Terms of Service after he made his pledge. I have my own opinions about arbitration but that's neither here nor there when what you agreed to did not dictate that you must resolve disputes through arbitration.
- dalore 8y ago
  But he has used the service since, making more pledges to other companies. Part of continuing to use kickstarter is to to accept the new TOS when they come out. If he made one pledge, and then never used or logged into kickstarter and agreed to a new TOS then he would have a case.
- extrapickles 8y ago
  According to the article, he made a some of his pledges after the change to the Terms of Service. I can imagine that if they tried to get a refund somewhat close to the change, a judge could be convinced to allow the refund under the old ToS.

duxup 8y ago

I can't get phone or Internet in my area without some form of forced arbitration.....if I don't give up my rights to the court system for those services, I just don't get them. There is no option to simply not participate, it is absurd.

kibwen 8y ago
Have you tried asking your parents for an itsy-bitsy teensy-weensy million-dollar loan so you can found your own telecom?
- lawlessone 8y ago
  A.K.A The Kardashian method to becoming self made.
- duxup 8y ago
  Not asking my parents....but I have thought of it as a pie in the sky thing...

jellicle 8y ago

> If the public service of justice is slow and expensive Is small claims court slow and expensive? Not to my knowledge.

pjc50 8y ago
It's expensive for businesses because they tend to find in favour of the consumer, whereas with forced arbitration the business can pick the most biased arbitrator to rule in their favour.
- jellicle 8y ago
  Well, okay. Right. I agree. I just don't want people reinforcing the meme that "justice is always slow and expensive and that's why businesses want arbitration" when the real reason is "courts are too fair and that's why businesses want arbitration". The accessibility, fairness, speed and low cost of small claims courts to poor individual litigants is a bug, not a feature, from the perspective of the US's larger corporations.
- Karunamon 8y ago
  <comment class='devils-advocate'/> From what it seems like, most large companies tend to use the same few arbitration firms. JAMS and AAA come up often in the contracts I've read. How often does this "arbitrator shopping" actually happen? It's a complaint I hear often, but little in the way of data to support it. I have seen data to suggest that arbitrators rule often in the favor of the companies, but that could be a result of more people raising bullshit claims since it's significantly easier to do so.
  - pixl97 8y ago
    >om what it seems like, most large companies tend to use the same few arbitration firms Maybe the other arbitrators went out of business because they ruled on the consumer side. See: survivorship bias.
    - Karunamon 8y ago

gwern 8y ago

I'm more disturbed by the parts of the article which say that he never agreed to a forced arbitration clause in the first place because it wasn't in the ToS when he paid, but the judge decided to go with the later ToS anyway: > According to Lord, the terms of service when he made the initial pledge aren’t the same terms of service they are today. The original terms of service, according to RSI’s own records, make no mention of arbitration before February 2015. “These Terms of Service (TOS) do not affect any transactions made before its effective date,” RSI’s terms site said. “All prior transactions are governed by the TOS in effect on the date of such transactions.” > Lord came to court prepared. He had printed out multiple versions of the terms of service, all records of communication with RSI, and a long document recording the 77 promises RSI hasn’t fulfilled in a timely fashion, including citations showing where and when RSI made those promises. But the case never got that far. He said RSI’s representatives understood that Lord’s pledges weren’t covered by the arbitration clause, and he offered to settle, again, for $3,800. They declined. > According to Lord, when RSI’s representatives stood before the judge, they tried to argue the arbitration clause of their TOS. “Right off the bat, they assert the arbitration clause applied to everything, even though it plainly didn't,” Lord said. “I had to give the judge a copy of the first terms of services that clearly show that the arbitration clause was not there for the first few transactions.” > ...According to Lord, the judge decided to apply the current TOS to all of the transactions in dispute. “He said he didn’t want two rulings floating out there,” Lord said. He may have lost this case, but he’s not done fighting. “I’m going to pursue it further. I’m not sure in what direction. I’m going to be speaking with a couple of different attorneys to evaluate my options.” I mean... what? So even if you do exercise your choice as a consumer to avoid a forced-arbitration clause, companies can simply add it to their ToSes later on and retroactively make it apply to all interactions ever with the company?

daburninatorrr 8y ago
This is especially important, and I don't see anyone else here (at the moment of posting this) calling this out. This is a disastrous precedent to set for consumers, because it means that even though you are agreeing to terms on the date of the sale, those same terms of the sale can be changed on a moments notice and still affect you, without your knowledge or consent. It's a shame that he has to keep fighting this, but I would assume (edit: I should say, I really, really hope) that this decision will eventually be overturned.

throw2016 8y ago

This is a disturbing precedent and decision. Forced arbitration is a huge flag that severely dilutes consumer rights and makes a mockery of consumers and markets. This kind of precedent should not be allowed to stand but there is only so much time an individual who has to make a living can devote to these kind of issues. It's not like a corporation that has legal staff on board and can afford to litigate for years on end without any consequences for anyone involved, and if there is a fine at the end it gets paid.

jasonlotito 8y ago

> He lost because of a forced arbitration clause. Just to be clear, that doesn't mean he wouldn't have lost otherwise, or that forced arbitration wouldn't have worked in his favor. If forced arbitration wasn't a consideration, he might still have lost.

kevin_b_er 8y ago
Arbitration is a net loss for the human. The rulings are secret. The impersonal corporation knows which arbiters favor it and which do not, and can blacklist based on that. Arbiters only get work if they continue to rule for corporations. The corporation knows which arguments worked for it in the past with arbiters, but the judgements are secret and the human cannot research as a corporation can. Arbitration is a biased loss for a human up against a corporation in mandatory binding arbitration via a contract of adhesion.
- jasonlotito 8y ago
  That's all beside the point.
  - salawat 8y ago
    No, that's all material to the point. It's the same type of thing that led to most IP cases being heard in a particular Circuit/District Court in Texas. When you as the consumer have nil input into establishing an impartial venue, and the COMPANY has an ongoing business relationship with the Arbiter on which the Arbiter depends it completely undermines the integrity of the proceedings. It's like asking your Mother in Law to preside over divorce proceedings. How is this so hard to understand? If a company can force you into that regime, and has all the bargaining power in the transaction, you are not at the table as equals. You are cattle. You are meant to consume and remain silent. Any complaints will be ignored in the order they are received. You can say that IDEALLY the Arbitration company runs arbitration for many other companies, so is an impartial body in this case. Losing this ONE business wouldn't hurt right? Except their bills ARE PAID by your opponent. You don't bite the hand that feeds. It's why the public justice system "works". If arbitration is so effective, it should be integrated into the public justice system and funded accordingly. Otherwise, it's your Civil Rights being discarded by corporate contract lawyers.

gascan 8y ago

If the public service of justice is slow and expensive, we need to fix the public service, not replace it with a free market simulacrum. The argument is that the justice system is slow and expensive because it is overloaded with cases that don't really belong in the justice system in the first place. Which is not a radical idea; e.g. only some cases merit the attention of a district court, and fewer still merit the SCOTUS. You can see the "overloading" perspective when you look at the asylum hearing backlog. The demand outstrips the judiciary's ability to run fair hearings practically to the point of absurdity.

s73v3r_ 8y ago
If arbitration really is a better solution, then people will choose to go that route themselves, instead of being forced into it by a company trying to get more favorable results.

ajross 8y ago

> If the public service of justice is slow and expensive, we need to fix the public service, The public service (small claims court) was present and used. He just didn't get the result he wanted. It's not like the "public service of justice" was evaded. He got a hearing. The judge (a real judge!) said the arbitration clause was enforceable. So he lost. In court. Having exercised his constitutional right to petition his government for redress of grievances. I mean, look: I get that arbitration clauses can be unfair. But that's not an indictment of arbitration, it's an indictment of unfair contracts. For every case like this that makes your blood boil there's one that throws out an arbitration clause that wasn't appropriate. The system works, basically. It just doesn't get this guy his $4500 back because he made a stupid bet on Kickstarter.

s73v3r_ 8y ago
No, he did not get his constitutional right to petition his government for redress. He was denied this because a company added a clause forcing people to go into the private justice system. A clause that never, ever, ever should be enforceable, because it is entirely unconscionable. The system did NOT work.
- ABCLAW 8y ago
  Yes he did. He was denied his right to redress because the judge thought the case wasn't worth enough to be worth his time, wrote a very dismissive ruling and then hoped it wouldn't be appealed so his shitty ruling wouldn't be torn apart. This isn't a 'the sky is falling' situation. This is a judge cutting a corner to get to cases he views as more important.
kevin_b_er 8y ago
No. The judge announced that courts of law do not apply, only arbitration psuedocourts apply. Arbitration is no longer thrown out almost ever, because of ATT Mobility LLC v. Concepcion. An unconscionable contract with arbitration is not an exception to arbitration anymore and state laws no longer apply to arbitration compelled agreements. The arbiter will decide what, if any, laws to follow. The arbiter will decide if the contract is fair. The arbiter will decide if they even want to rule based on the dispute at hand or something arbitrary. You are behind the times on the sheer power of mandatory binding arbitration.

CryptoPunk 8y ago

No one is forcing you to use forced arbitration. You're not entitled to someone else's service. If you don't want to accept forced arbitration, then don't use their service. What you're really saying is that you want to prevent me from offering a service on the condition that contract disputes are handled by alternative dispute resolution mechanisms. This desire to impose restrictions on other people's free action is immoral, and doesn't become okay due to your anti-free-market ideology.

acdha 8y ago
This is a rather naive position which ignores the information and power disparities. The average person doesn’t have time to review every contract for everything they use, nor is it clear why this should be unlike every other thing you buy simply because it involves software, and there are whole sectors where the only option is not to have e.g. mobile phone service. It’s especially sad to see you trying to spin blocking someone’s ability to exercise their right to use the legal system as a pro-liberty move. At the least you can be honest and acknowledge that it’s about saving money.
- CryptoPunk 8y ago
  What you're referring to is an entirely different issue, which is informed consent. If the contract is designed to get the user to quickly glance over it, and agree to unfair terms without understanding it, then yes it's unfair, and any properly functioning court system will void it. But that's a separate issue from the possibility of including arbitration clauses in a contract, which simply expands the range of possible contracts two consenting parties can enter into.
  - acdha 8y ago
    You don’t expand options by removing them. Being forced to use a company’s appeals process is a distinct reduction in freedom from the status quo.
    - CryptoPunk 8y ago