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1) You have a constitutional right to bring suit against a private company if the amount in dispute exceeds $20. 2) The clauses are meaningless as the problem

1) You have a constitutional right to bring suit against a private company if the amount in dispute exceeds $20. 2) The clauses are meaningless as the problem is with the lack of provable assent.

hodag 12y ago
1) Negative. You do not. What you have is a right to a jury trial in a civil case, where a federal court has jurisdiction , that would have been brought before the courts of law (rather than equity) in England in 1789. In the case of class actions, if you don't have a federal law that authorizes your claim, you actually need $5 million in controversy before you can get into federal court. 2. This is only partially true. Yes, there might be a problem with assent, but it doesn't render the clauses meaningless. As far as I'm aware, so-called "clickwrap" contracts, where you agree to a contract by clicking, suffice to manifest assent in every state. Companies haven't been as successful arguing that they can prove assent based on a tiny "terms of service" link on the bottom of their page that you don't have to click to agree to (sometimes called "browsewrap"), but click-through contracts are pretty much valid. Yes, they're contracts of adhesion with a seemingly unfair power imbalance, but between pro-business judges and the pro-business UCC, this argument doesn't get far.
- jsprogrammer 12y ago
  1) Not sure where you're coming from. If a company has damaged me for more than $20, I have a constitutional right to jury trial against them. 2. It is meaningless in the context of "you violated our language as pursuant to § 12 paragraph 10 sentence 4 clause 2 subsection c item 15" because their language never even makes into the case due to lack of provable assent. Claiming "clickwrap", "browsewrap", "click-through" or any other jargon doesn't help. You will need to provide the full source of the code that was actually ran and show that the user actually read, understood, and assented to whatever language you claim. This is basically impossible on many fronts: a) most companies don't track events in enough detail b) you'll never be able to prove those events actually happened c) even if you can prove that someone actually checked a box and pushed a button, you still can't prove someone actually read language and agreed to it.
  - deleted 12y ago
    [deleted]
  - hodag 12y ago
    1) I'm assuming you're getting that $20 figure from the Seventh Amendment, and while your interpretation seems reasonable and natural, it's not how the Seventh Amendment has been interpreted. First, the Seventh Amendment has never been applied to the states, so it doesn't give you any rights in your state's court. If Massachusetts wanted to amend its state constitution to abolish juries in civil cases in Massachusetts state courts, it could do so tomorrow. As far as federal court goes, it only applies if the court has jurisdiction to hear your case. The Seventh Amendment tells us that you have the right to a jury if you get to trial (in certain circumstances), but it says nothing about whether the court is allowed to hear your case. Jurisdiction in federal courts is granted by Congressional statute (subject to the limits of Article III), and you only have a right to get into federal court if your case falls under one of these statutes. Otherwise, no federal court, and no Seventh Amendment. 2) I wish this were true, but unfortunately it's not. A contract can be valid even if you never read it and you didn't understand it. What's really important is that they can prove that you made an outward and objective manifestation of your assent to that contract. If the website is set up to require you to agree to terms of service before you create an account, then they prove that. Since you've probably already alleged that you created an account when you filed the lawsuit, you're probably stuck. If you read Judge Easterbrook's opinion in ProCD v. Zeidenberg (https://scholar.google.com/scholar_case?case=11811009805458694240 https://scholar.google.com/scholar_case?case=118110098054586...), you can get an idea of how that happens. Again, I think it's shitty, but that's how it works today.
    - jsprogrammer 12y ago
      1) Do you know of an instance of someone asserting >$20 damages and 7th amendment right to a jury trial being denied? 2) It may or may not be how it works today, but that is only because I have not made the argument (likewise, no one has asserted that I violated their language). > If the website is set up to require If a company wants to take the argument this far, they will have to produce all their code, including the code that was running the day they claim I assented. They will have to prove that it is not possible to use the software without assent of the user to their language. 1) Most companies will not produce their code (and likely won't be able to produce the code that you used) and will fail on their claim. 2) Most companies will not be able to prove that their code requires a user to assent before usage. 3) I can't imagine anything short of video evidence of a user staring at a screen, scrolling through all of their language, then considering their options and making a decision as proof of assent. The claimant just doesn't know what happened. Because, well, they weren't there and took no verifiable record of it.
hodag 12y ago
I should add that what I'm trying to illustrate here is that arbitration clauses are a big problem. Arbitration is a stacked deck, and consumers always lose. They lose even when they win, since you can only arbitrate your individual claim. The clauses are very difficult to fight in court, and they deprive consumers of rights they don't even know they're giving up. Arbitration effectively allows companies to bilk consumers out of money and then make it so expensive to recover that the consumer (or her lawyer) won't bother. It's legal, and it's constitutional, but damn is it shitty.

1) You have a constitutional right to bring suit against a private company if the amount in dispute exceeds $20. 2) The clauses are meaningless as the problem is with the lack of provable assent.

hodag 12y ago

1) Negative. You do not. What you have is a right to a jury trial in a civil case, where a federal court has jurisdiction , that would have been brought before the courts of law (rather than equity) in England in 1789. In the case of class actions, if you don't have a federal law that authorizes your claim, you actually need $5 million in controversy before you can get into federal court. 2. This is only partially true. Yes, there might be a problem with assent, but it doesn't render the clauses meaningless. As far as I'm aware, so-called "clickwrap" contracts, where you agree to a contract by clicking, suffice to manifest assent in every state. Companies haven't been as successful arguing that they can prove assent based on a tiny "terms of service" link on the bottom of their page that you don't have to click to agree to (sometimes called "browsewrap"), but click-through contracts are pretty much valid. Yes, they're contracts of adhesion with a seemingly unfair power imbalance, but between pro-business judges and the pro-business UCC, this argument doesn't get far.

jsprogrammer 12y ago
1) Not sure where you're coming from. If a company has damaged me for more than $20, I have a constitutional right to jury trial against them. 2. It is meaningless in the context of "you violated our language as pursuant to § 12 paragraph 10 sentence 4 clause 2 subsection c item 15" because their language never even makes into the case due to lack of provable assent. Claiming "clickwrap", "browsewrap", "click-through" or any other jargon doesn't help. You will need to provide the full source of the code that was actually ran and show that the user actually read, understood, and assented to whatever language you claim. This is basically impossible on many fronts: a) most companies don't track events in enough detail b) you'll never be able to prove those events actually happened c) even if you can prove that someone actually checked a box and pushed a button, you still can't prove someone actually read language and agreed to it.
- deleted 12y ago
  [deleted]
- hodag 12y ago
  1) I'm assuming you're getting that $20 figure from the Seventh Amendment, and while your interpretation seems reasonable and natural, it's not how the Seventh Amendment has been interpreted. First, the Seventh Amendment has never been applied to the states, so it doesn't give you any rights in your state's court. If Massachusetts wanted to amend its state constitution to abolish juries in civil cases in Massachusetts state courts, it could do so tomorrow. As far as federal court goes, it only applies if the court has jurisdiction to hear your case. The Seventh Amendment tells us that you have the right to a jury if you get to trial (in certain circumstances), but it says nothing about whether the court is allowed to hear your case. Jurisdiction in federal courts is granted by Congressional statute (subject to the limits of Article III), and you only have a right to get into federal court if your case falls under one of these statutes. Otherwise, no federal court, and no Seventh Amendment. 2) I wish this were true, but unfortunately it's not. A contract can be valid even if you never read it and you didn't understand it. What's really important is that they can prove that you made an outward and objective manifestation of your assent to that contract. If the website is set up to require you to agree to terms of service before you create an account, then they prove that. Since you've probably already alleged that you created an account when you filed the lawsuit, you're probably stuck. If you read Judge Easterbrook's opinion in ProCD v. Zeidenberg (https://scholar.google.com/scholar_case?case=11811009805458694240 https://scholar.google.com/scholar_case?case=118110098054586...), you can get an idea of how that happens. Again, I think it's shitty, but that's how it works today.
  - jsprogrammer 12y ago
    1) Do you know of an instance of someone asserting >$20 damages and 7th amendment right to a jury trial being denied? 2) It may or may not be how it works today, but that is only because I have not made the argument (likewise, no one has asserted that I violated their language). > If the website is set up to require If a company wants to take the argument this far, they will have to produce all their code, including the code that was running the day they claim I assented. They will have to prove that it is not possible to use the software without assent of the user to their language. 1) Most companies will not produce their code (and likely won't be able to produce the code that you used) and will fail on their claim. 2) Most companies will not be able to prove that their code requires a user to assent before usage. 3) I can't imagine anything short of video evidence of a user staring at a screen, scrolling through all of their language, then considering their options and making a decision as proof of assent. The claimant just doesn't know what happened. Because, well, they weren't there and took no verifiable record of it.

hodag 12y ago

I should add that what I'm trying to illustrate here is that arbitration clauses are a big problem. Arbitration is a stacked deck, and consumers always lose. They lose even when they win, since you can only arbitrate your individual claim. The clauses are very difficult to fight in court, and they deprive consumers of rights they don't even know they're giving up. Arbitration effectively allows companies to bilk consumers out of money and then make it so expensive to recover that the consumer (or her lawyer) won't bother. It's legal, and it's constitutional, but damn is it shitty.