4 ms·

It really would be nice for some legislation to restore access to the justice system.

by teeray 2y ago

jkaplowitz 2y ago
Such legislation has gotten proposed in every session of Congress in recent years. It hasn’t passed yet. I hope it does, eventually.
- coldpie 2y ago
  An example from 2022: https://www.reuters.com/legal/transactional/house-passes-bill-end-mandatory-arbitration-legal-disputes-2022-03-17/ https://www.reuters.com/legal/transactional/house-passes-bil... Supported by Democrats, killed by Republicans. Elections matter.
bigstrat2003 2y ago
This is what we need, yeah. I don't have a problem with binding arbitration if parties with equal leverage agree to it, but it should be flat out illegal to require it as terms of employment or part of ToS.
- koolba 2y ago
  > … or part of ToS. Let’s forget employment for a sec and just look at a product’s terms. Why can’t you just not use the product? “It’s popular” is hardly an excuse for something new if you’re picking the platform. If it’s an existing community and you feel forced to join a closed system with too many rules for your tastes, skip it. The community will suffer and hopefully they change to something you’ll like. But if not, screw em.
  - foota 2y ago
    Avoiding a large part of society isn't a practical response. Besides, many may not know of the forced arbitration, despite it negatively impacting them. People are famously bad at these coordination problems.
    - koolba 2y ago
      > Avoiding a large part of society isn't a practical response. In my personal experience, it’s worked out fine. > Besides, many may not know of the forced arbitration, despite it negatively impacting them. People are famously bad at these coordination problems. Not reading the thing you’re agreeing to is not an excuse. Otherwise it’d be an out for any contract. And again, consumers can vote with their feet by only agreeing to terms that are understandable.
      - noodlesUK 2y ago
        Countries regularly legislate and regulate against various forms of unfair terms in contracts, ranging from the deceptive and absurd to fairly mundane things. You can’t enter into contracts requiring illegal behaviour for instance. This is true in the U.S. and all other countries that I’m aware of. In the UK and other European countries, particularly regarding consumer goods or other kinds of contracts with an inherent asymmetry of negotiating power, there are lots of things you can’t agree in contracts, such as disclaiming general fitness for purpose and safety. Deciding that you can’t agree away your rights to redress through the judicial system seems like a reasonable extension of these kinds of rules.
      - handoflixue 2y ago
        > In my personal experience, it’s worked out fine. Okay, but you do realize other people have a different experience of the world, right? Discord is super-easy to avoid right up until it turns out the only communities for something are on Discord. Or your teacher assigns you work that requires using it. Or your work requires you to use it. Or... And the thing is, 99% of us will never run into any of those situations! It's easy not to be affected personally, right up until you are > Not reading the thing you’re agreeing to is not an excuse. Okay, but I did read the entire TOS at the time - now I'm required to also read every update and respond within a 30 day period. Which, again, easy not to be personally affected right up until you're on vacation in a region with bad internet, or just super-busy with work and you miss that one email > And again, consumers can vote with their feet by only agreeing to terms that are understandable. We ban all sorts of contracts - you can't sell yourself into slavery, you can't agree to commit a crime. So what's wrong with voting with our actual vote, instead? Especially since I'm interested in protecting not just myself, but other people who might not realize how much this potentially disadvantages them.
  - Akronymus 2y ago
    I know a few students who are required to use discord due to the teacher distributing courae work over it.
    - foresto 2y ago
      It makes me sad to learn that someone's education is locked behind Discord's Terms of Service and Privacy Policy.
      - ronsor 2y ago
        Wait until you learn how much education is locked behind Google's Terms of Service and Privacy Policy, or Microsoft's...
        foresto 2y ago
        Are you trying to make me cry?
  - teeray 2y ago
    Voting with your feet only works if your feet have somewhere else to go. Binding arbitration is a cancer that is everywhere and spreading. Your due diligence to choose products that have no binding arbitration are futile, because they can change the game any time. You can opt out, but then they play the arbitration do-over card like Discord is doing here and nullify that unless you opt out again. You can’t win.
  - 8note 2y ago
    Discord is the sole distributor for products that they do not themselves, the conversations done by third parties. If chat required interoperability like telephones do, this would not be an issue. The government has failed at making proper regulations
- hakfoo 2y ago
  Modern civil law seems to revolve around this quaint fiction of contracts being some sort of "meeting of the minds" of relatively equally resourced parties. This might have been viable in 1795, but it feels ill suited to a world where we have billion dollar firms, legal staff on retainer, and contracts that have been revised like a codebase... versus consumers with no formal legal training. Even if there wasn't an inherent inequality of field, the high cost of litigation also encourages a tendency to ask for the unreasonable. The people presenting the contract know there's probably not enough money in it for anyone but the wealthy and begrudged to try to challenge the contract, so there's little risk to asking for more permissions, less liability, and tighter binding on the consumer. In the worst case, the cost serves as an effective bludgeon for abusive behaviour: they'll go along because they can't afford to get a favourable judgement. I dream of a world where there's no surprises in contracts-- basically there'd be a book of standard contracts filled out in a Mad Lib fashion. This would collapse a lot of the possibilities courts would have to deal with, resulting in a faster, predictable, almost deterministic legal system. If someone actually wanted to bring out a new clause, it would have to go through a highly-visible, paperwork-intensive vetting and discussion process. The Discords of the world then have to face very public scrutiny of their actions and motives: what makes your needs so special that they can't be dealt with using the standard contract for data services?
willcipriano 2y ago
If the justice system prevents access to itself like this, can it really call itself a justice system anymore?
- MiguelX413 2y ago
  I've always thought that it should be called “(the) legal system”, not “(the) justice system”.
xyst 2y ago
Given the state of SCOTUS, doubtful.
- tzs 2y ago
  Isn't it the Federal Arbitration Act from 1926 that is largely responsible for the current state of forced arbitration in the US? If Congress wants to remove that I don't see how the Supreme Court would be able to find a way to say that they cannot.
  - lostdog 2y ago
    The Supreme Court reinvented the FAA under Roberts, giving it more power than was ever intended. True that Congress could override their interpretation, but people blame the Supreme Court because they created the mess in the first place.
FMecha 2y ago
At this point I believe the only solution is a constitutional amendment, not a mere legislation, given that pro-arbitration laws/cases have been ruled as constitutional.
- xp84 2y ago
  Not a lawyer, but I don’t think that’s true. There isn’t anything in the Constitution about arbitration. Congress passed an arbitration law and nothing in it prevents all this. When cases go to court, the constitution is the only thing that could override the law, but if the law gets better, more specific, adds more protections, SCOTUS must respect that, again unless the Constitution somehow applied. A lot of SCOTUS opinions in general seem pretty clear that they wish Congress would act and spell out what they want to happen, because that sure as hell is better than running to the courts to decide everything.

It really would be nice for some legislation to restore access to the justice system.

by teeray 2y ago

It really would be nice for some legislation to restore access to the justice system.

Such legislation has gotten proposed in every session of Congress in recent years. It hasn’t passed yet. I hope it does, eventually.

coldpie 2y ago
An example from 2022: https://www.reuters.com/legal/transactional/house-passes-bill-end-mandatory-arbitration-legal-disputes-2022-03-17/ https://www.reuters.com/legal/transactional/house-passes-bil... Supported by Democrats, killed by Republicans. Elections matter.

bigstrat2003 2y ago

This is what we need, yeah. I don't have a problem with binding arbitration if parties with equal leverage agree to it, but it should be flat out illegal to require it as terms of employment or part of ToS.

koolba 2y ago
> … or part of ToS. Let’s forget employment for a sec and just look at a product’s terms. Why can’t you just not use the product? “It’s popular” is hardly an excuse for something new if you’re picking the platform. If it’s an existing community and you feel forced to join a closed system with too many rules for your tastes, skip it. The community will suffer and hopefully they change to something you’ll like. But if not, screw em.
- foota 2y ago
  Avoiding a large part of society isn't a practical response. Besides, many may not know of the forced arbitration, despite it negatively impacting them. People are famously bad at these coordination problems.
  - koolba 2y ago
    > Avoiding a large part of society isn't a practical response. In my personal experience, it’s worked out fine. > Besides, many may not know of the forced arbitration, despite it negatively impacting them. People are famously bad at these coordination problems. Not reading the thing you’re agreeing to is not an excuse. Otherwise it’d be an out for any contract. And again, consumers can vote with their feet by only agreeing to terms that are understandable.
    - noodlesUK 2y ago
      Countries regularly legislate and regulate against various forms of unfair terms in contracts, ranging from the deceptive and absurd to fairly mundane things. You can’t enter into contracts requiring illegal behaviour for instance. This is true in the U.S. and all other countries that I’m aware of. In the UK and other European countries, particularly regarding consumer goods or other kinds of contracts with an inherent asymmetry of negotiating power, there are lots of things you can’t agree in contracts, such as disclaiming general fitness for purpose and safety. Deciding that you can’t agree away your rights to redress through the judicial system seems like a reasonable extension of these kinds of rules.
    - handoflixue 2y ago
      > In my personal experience, it’s worked out fine. Okay, but you do realize other people have a different experience of the world, right? Discord is super-easy to avoid right up until it turns out the only communities for something are on Discord. Or your teacher assigns you work that requires using it. Or your work requires you to use it. Or... And the thing is, 99% of us will never run into any of those situations! It's easy not to be affected personally, right up until you are > Not reading the thing you’re agreeing to is not an excuse. Okay, but I did read the entire TOS at the time - now I'm required to also read every update and respond within a 30 day period. Which, again, easy not to be personally affected right up until you're on vacation in a region with bad internet, or just super-busy with work and you miss that one email > And again, consumers can vote with their feet by only agreeing to terms that are understandable. We ban all sorts of contracts - you can't sell yourself into slavery, you can't agree to commit a crime. So what's wrong with voting with our actual vote, instead? Especially since I'm interested in protecting not just myself, but other people who might not realize how much this potentially disadvantages them.
- Akronymus 2y ago
  I know a few students who are required to use discord due to the teacher distributing courae work over it.
  - foresto 2y ago
    It makes me sad to learn that someone's education is locked behind Discord's Terms of Service and Privacy Policy.
    - ronsor 2y ago
      Wait until you learn how much education is locked behind Google's Terms of Service and Privacy Policy, or Microsoft's...
      - foresto 2y ago
        Are you trying to make me cry?
- teeray 2y ago
  Voting with your feet only works if your feet have somewhere else to go. Binding arbitration is a cancer that is everywhere and spreading. Your due diligence to choose products that have no binding arbitration are futile, because they can change the game any time. You can opt out, but then they play the arbitration do-over card like Discord is doing here and nullify that unless you opt out again. You can’t win.
- 8note 2y ago
  Discord is the sole distributor for products that they do not themselves, the conversations done by third parties. If chat required interoperability like telephones do, this would not be an issue. The government has failed at making proper regulations
hakfoo 2y ago
Modern civil law seems to revolve around this quaint fiction of contracts being some sort of "meeting of the minds" of relatively equally resourced parties. This might have been viable in 1795, but it feels ill suited to a world where we have billion dollar firms, legal staff on retainer, and contracts that have been revised like a codebase... versus consumers with no formal legal training. Even if there wasn't an inherent inequality of field, the high cost of litigation also encourages a tendency to ask for the unreasonable. The people presenting the contract know there's probably not enough money in it for anyone but the wealthy and begrudged to try to challenge the contract, so there's little risk to asking for more permissions, less liability, and tighter binding on the consumer. In the worst case, the cost serves as an effective bludgeon for abusive behaviour: they'll go along because they can't afford to get a favourable judgement. I dream of a world where there's no surprises in contracts-- basically there'd be a book of standard contracts filled out in a Mad Lib fashion. This would collapse a lot of the possibilities courts would have to deal with, resulting in a faster, predictable, almost deterministic legal system. If someone actually wanted to bring out a new clause, it would have to go through a highly-visible, paperwork-intensive vetting and discussion process. The Discords of the world then have to face very public scrutiny of their actions and motives: what makes your needs so special that they can't be dealt with using the standard contract for data services?

willcipriano 2y ago

If the justice system prevents access to itself like this, can it really call itself a justice system anymore?

MiguelX413 2y ago
I've always thought that it should be called “(the) legal system”, not “(the) justice system”.

xyst 2y ago

Given the state of SCOTUS, doubtful.

tzs 2y ago
Isn't it the Federal Arbitration Act from 1926 that is largely responsible for the current state of forced arbitration in the US? If Congress wants to remove that I don't see how the Supreme Court would be able to find a way to say that they cannot.
- lostdog 2y ago
  The Supreme Court reinvented the FAA under Roberts, giving it more power than was ever intended. True that Congress could override their interpretation, but people blame the Supreme Court because they created the mess in the first place.

FMecha 2y ago

At this point I believe the only solution is a constitutional amendment, not a mere legislation, given that pro-arbitration laws/cases have been ruled as constitutional.

xp84 2y ago
Not a lawyer, but I don’t think that’s true. There isn’t anything in the Constitution about arbitration. Congress passed an arbitration law and nothing in it prevents all this. When cases go to court, the constitution is the only thing that could override the law, but if the law gets better, more specific, adds more protections, SCOTUS must respect that, again unless the Constitution somehow applied. A lot of SCOTUS opinions in general seem pretty clear that they wish Congress would act and spell out what they want to happen, because that sure as hell is better than running to the courts to decide everything.