I won't agree to arbitration services at all, if it removes your right to sue. I have been burned in the past by a manifestly unfair arbitration decision. We submitted our evidence, they asked the other side for their response. The other side lied, and provided no evidence. The arbitration service simply decided in the other parties favor; we were allowed no rebuttal.
Legal question: is there an argument to be made that the arbitrator did not behave as a neutral third party (assuming that's the definition of arbitrator in your jurisdiction), and thus the contract has been breached and you're open to sue? I know that sounds Quixotic.
So, in real civil court, there's a thing called discovery which lets both sides demand evidence from one another with the force of law. Such a thing is not guaranteed to be available in arbitration, and in order for civil disputes to be decided even remotely fairly, you have to have the ability to pull evidence from the other side. Otherwise it's just "he said, she said" which will go in favor of whoever is bringing in the arbitrator more business.
Arbitration seems just another way for big corp to weasel their way out of their obligations and responsibilities to consumers. See Hot Coffee Documentary [1]
If congress passed a law saying arbitration was illegal the court would have to abide by it. The court has only gotten more power because of a dysfunctional and gridlocked congress.
The Court, not Congress, favoured arbitration over court in consumer contracts.
Arbitration, when passed, was designed for contract disputes between merchants, not statutory claims or between entities of unequal bargaining power. In fact members of Congress expressly disavowed touching either consumer or employment contracts - and even went so far as to make that explicit with respect to employment.
"but nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers ...." was specifically intended to exclude all employment contract.
It was the Court, in Circuit City v. Adams, incorrectly, claimed that ejusdem generis applied here.
Please see for further details:
Sternlight, J. R. (2005). Creeping Mandatory Arbitration: Is It Just? Scholarly Works, 57(280), 1631–1676. pp 1631
Cain, R. M. (1988). Commercial Disputes and Compulsory Arbitration. The Business Lawyer, pp 65
Cohen, J. H., & Dayton, K. (1926). The New Federal Arbitration Law. Virginia Law Review, 12(4), 265–286. https://doi.org/10.2307/1065471 pp 265
Stone, K. V. W. (2018). Rustic Justice: Community and Coercion under the Federal Arbitration Act [Preprint]. LawArXiv. https://doi.org/10.31228/osf.io/6g7e3 §IV.F pp 987-991
Congress could have said "shall apply to contracts of employment." Because they listed some specific then the general, the Court said that we don't read the general to expand beyond the specific examples much.
Congress can of course pass a law if the court got it wrong to clarify the construction.
You're correctly understanding the mistake the court made. The principle does not normally apply in this context under ordinary rules of statutory interpretation.
I even gave you a source from the author of the law itself.
You are correct that congress can fix the issue. Due to deadlock and a lack of care they have not.
Supreme court using congress dysfunction to change the laws how they want is still supreme court being wrong and causing harm. It is congress fault they are gridlocked, it is supreme court who is actively doing something wrong.
It's dishonest to use an ellipsis to change the meaning of a text. The full quote is:
"nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce."
That exception does not apply to all workers. In Circuit City Stores, Inc. v. Adams (2001), the SC found that it only applies to transportation workers.
I used the ellipse for emphasis rather than dishonesty. The full quote was above. (If HN supported formatting I'd perhaps have used bold instead of ellipse+elision.)
And yes. I read the full text of Circuit City including every footnote. I've also read multiple analysis of the opinion by different scholars. I've also read multiple articles by the original author of the text as well as transcripts of the Congressional debate at the time it passed.
The reasoning for specifically mentioning transportation workers is that there are separate statues for arbitration or worker-contract for those workers and Congress did not want to conflict.
If the act was intended to exclude all employment contracts, why did it not simply say that?
It could have simply said "nothing herein contained shall apply to contracts of employment". Instead it lists specific kinds of contracts it shall not apply to.
And the explanation that "Congress did not want to conflict" doesn't make sense. Excluding all workers from this act would ensure that this act does not conflict, not mentioning them does not ensure that.
Bear in mind this was written in 1928 in a very different legal context. In particular it was written before the Erie double-reversal [0].
Personally, I think it was poorly drafted by modern standards. Today, this particular exclusion would be something like adding an additional paragraph with text that says "nothing herein shall affect any provision of any other statue" (please excuse my imprecision)
Julius Henry Cohen, one of the key authors of the law, wrote the following (ellipse and elision for emphasis. Please see the full source for full text):
> ... which commands an unusually widespread support in the business world because the reform is directed primarily toward settlement of commercial disputes...
> A written provision for arbitration contained in any contract which involves maritime transactions ... or interstate commerce as generally defined, is made "valid, enforceable and irrevocable,"
> It must be read in the light of the situation which it was devised to correct and of the history of arbitration anid of similar statutes in the recent past.
> The evils which arbitration is intended to correct are three in number: (1) The long delay usuallv incident to a proceeding at law, in equity or in admiralty, especially in recent years in centers of commercial activity, where there has arisen great congestion of the court calendars. nce. (2) The expense of litigation. (3) The failure, through litigation, to reach a decision regarded as just when measured by the standards of the business world.
> Arbitration under the Federal and similar statutes is simply a new procedural remedy, particularly adapted to the settlement of commercial dispute
> 'Information collected by the Department of Commerce over the past several years' hie said, 'clearly showed that the substantial element of the American business public is overwhelmingly in favor of arbitration in the settlement of *commercial disputes* in both domestic and foreign trade
While I don't quote it here, there is also interesting rules around jurisdictions which the law was trying to dance around.
Please also see [2]
58 See Leslie, supranote 57, at 309 ("Congress did not intend the FAA to facilitate firms imposing arbitration clauses on consumers through contracts of adhesion.... For example, in colloquy, when senators raised the issue of contracts of adhesion, the bill's supporters testified that the FAA would not apply to such situations."); id. at 310-11 ("During the earliest hearings for the FAA, concerns were expressed that the Act could cover employment . .. . The Act's text was amended [to exclude] 'contracts of employment of ... any ... class of workers engaged in foreign or interstate commerce.' . . . [T]he amendment appeased labor interests, who removed their opposition to the bill." (footnote omitted) (quoting 9 U.S.C. § 1 (2012))); Margaret L. Moses, Statutory Misconstruction: How the Supreme Court Created a FederalArbitrationLaw Never Enacted by Congress, 34 FLA. ST. U. L. REv. 99, 147 (2006) ("[N]o one in 1925-not the drafters, the Secretary of Commerce, organ ized labor, nor members of Congress-believed that the FAA applied to employment contracts.").
You also inspired me to go looking at this one [3]. I have not yet read it in full so please excuse any errors of understanding. (I have a backlog of 263 items at the moment).
> These points represent at best pure speculation, which a fair reading of the legislative history quickly undercuts. As Professor Schwartz has pointed out, language in the bill concerning contracts involving commerce was amended at the request of Senator Walsh, who wanted to narrow the effect of the Act, not expand it.178 Prior to amendment in 1924,179 the bill which became the FAA provided coverage of three categories: “any contract or maritime transaction or transaction involving commerce.”180 The application of the FAA to “any contract” would have included contracts not in interstate commerce.181 At the time, contracts not considered in interstate commerce included most employment contracts and insurance contracts.182 Senator Walsh’s amendment limited contracts covered by the Act to any “contract evidencing a . . . transaction involving commerce.”183 His clear intent was to prevent the application of the FAA to contracts such as those of insurance and employment, which he considered adhesion contracts.184 Thus, by limiting the scope of the FAA to contracts which were actually considered in interstate commerce, Congress was reducing the reach of the bill, not expanding it to apply in state courts.
It is possible I misremember or misstated the conflict comment I made above too. I do know that for example: train and airline employees have explicit statues for their contracts. I am also certain that I read at least one article about this conflict between the FAA and other statutes. I am having some trouble locating it at the moment (I've read 198 articles on the topic) though.
[I actually made https://arbitrationinformation.org/ originally as my own personal notes since my memory isn't great. It only turned into a website once I realised that my notes would be useful for other people.]
[3] Margaret L Moses. (2006). Statutory Miconstruction: How the Supreme Court Created a Federal Arbitration Law Never Enacted by Congress. Florida State University Law Review, 34(1). https://ir.law.fsu.edu/lr/vol34/iss1/3
Yeah, but supreme court is modifying, twisting and reinterpreting those laws based on their own political agendas. Which in this case happens to be pro-arbitration.
Except Valve, for their Steam service. But that's only because someone realized that you could Zerg rush them with arbitration claims, whose fees they were obliged to pay (since their ToS forced users into it). Their only option that wouldn't be massively disruptive financially, in that case, would be to agree to a settlement with the arb representatives. So, now, you're only allowed to sue Valve, in a specific court of their choosing.
I'm pretty ignorant about these kinds of things so how does this work? If Valve can specify the court to be used couldn't the company always choose something like Alaska or Hawaii where it would be difficult to show up?
The key to mass arbitration filing is that it's the lawyers doing it, and they're the ones showing up wherever in place of the people who have signed agreements with them. Said lawyers are essentially gambling that the target company will give up and allow normal legal maneuevers, because doing arbitration en masse is actually really expensive for the company mandating arbitration.
FWIW I’ve started to see new arbitration agreements pop up that specifically try to disallow this strategy by using verbiage like “ only the consumer is allowed to file this claim” and even “lawyers who would handle more than 20 of these claims are not allowed to file them”. I have no clue of the legality of such clauses but I have seen them in the wild in the last few months
This case is about ticketmaster changing the TOS to use a new arbiter after they fell for that trick with their last one. The new arbiter has rules that prevent mass arbitration
Correct. That is your option when presented with unacceptable terms. Don't accept them. Counter with your own terms (not likely to work for run-of-the-mill online services though).
Additionally you may lobby your lawmakers to make this sort of thing illegal or at least more limited. But these arbitration clauses appeared because our civil law system was out of control with lawsuits. There needs to be reasonable limits on both sides.
Speaking precisely, a small minority is plenty. Successful businesses can run off a few hundred repeat customers and a bit of passion. The root cause is more that it is irrational to behave that way so there may be literally no or single digit people who will behave that way.
Putting some estimates to the situation, the calculation is something like (chance of a serious dispute arising = 0.0001) x (chance of a payout from the courts = 0.33) x (payout = $100,000) -> I'd be willing to pay $3.30 extra to avoid fixed arbitration clauses in a deal where there was serious money at stake.
That doesn't exactly capture all the game theory of the situation, but it suggests the risks here aren't worth shopping around for. It is easier and more effective to engage in economic voting with feet and punishing businesses that way for failure.
I mean that’s sounds reasonable, but only if your willing to up opt of a modern life (cell phones, internet, credit cards, subscription services, travel, insurance, etc.). I think the only way to solve this issue is through legislation.
I actually don’t have a problem with arbitration when it’s a mutually agreed deal term. But think that when it’s in a standard TOS/service there needs to be user protections/minimum standards (e.g. capped claimant fees, option for neutral third party arbiter, convenient/virtual location, discovery rights, etc.)
Nor can you publish in scientific journals which require an ORCID. Their terms of service state "Except as set forth herein, all Disputes shall be resolved by through a desk arbitration".
Well, because Congress passed the Federal Arbitration Act, which says it's legal.
Depending on your views, you might also note that American courts are ruinously expensive and many people are denied access to justice because they can't afford to go through the legal process - which a cheaper parallel system can help with.
Or with different political views, you might note that because the powerful elite get to write the contract, the powerful are only subject to arbitration when they want to be. And laws are written by the powerful elite.
This is why economic inequality is a problem. Although it's often brought up that the economy is not a zero-sum game, and it's possible for everyone to get richer together despite rising inequality, this view doesn't recognize that money brings power, and power is a zero-sum game.
It used to be a lot easier to get a law degree. California is currently the only state that will let you sit for the bar without a JD. You have to have equivalent work experience but you can still as a completely private citizen get yourself into practice.
Industrial gatekeeping is a real problem. One of the indirect mechanisms is the accumulated complexity of the law and the seeming inability for legislatures to remove outdated and fruitless laws from their books. Unsurprisingly the people most capable of achieving this are not interested in doing it.
Small correction, but there are actually four states (CA being one of them) where you can avoid law school by what is called “reading the law”. It entails more or less doing an apprenticeship with a practicing attorney or judge and meeting certain requirements.
The bar needs to be broken out into separate tests that credential different aspects of practicing law. There's no reason a criminal attorney needs expertise on securities law unless they practice in that field.
Do any other nations do that? Much of the UK splits barristers (trial law) and solicitors (non-trial law) but I’m pretty sure that’s a historical relic not a designed split to make each easier to learn and practice.
The annoying thing about it is that it could be structured in such a way as to be still vaguely attached to the (hopefully impartial) judiciary. Instead you have to trust an arbitrator that is in a business relationship with the entity you're having a problem with.
Which I'm sure the arbitrator will bend over backwards to make available to you, and you can surely investigate/sue to force discovery while you're in the midst of Yet Another Lawsuit, err arbitration, right?
Same reason you're allowed to defend yourself in court (to your peril) despite being afforded representation. It's a freedom, until you're locked into it by a larger organization with all the money and power plus a service you need to survive (or at least survive with some modicum of convenience). We've really allowed the moneyed interests to capture nearly everything.
Lawyers were not involved; the point of arbitration was supposed to be a quicker and cheaper way to resolve the dispute. Accepting arbitration removed your ability to sue later.
I naively believed that the process would be vaguely fair. It never occurred to me that they would allow the other side to see what I said, but not allow me to challenge (or even see) what the other side said.
> Lawyers were not involved; the point of arbitration was supposed to be a quicker and cheaper way to resolve the dispute
Arbitration isn’t small claims. It’s an order of magnitude cheaper than litigation. But it’s still subject to complex rules; you should have counsel when pursuing it. (And hopes akin to self representation in court without.)
> never occurred to me that they would allow the other side to see what I said, but not allow me to challenge (or even see) what the other side said
Which venue? This sounds more like a procedural errors during preliminary. If you honestly believe they acted incorrectly, I’d be curious how a properly-filed complaint would have been received.
I don't know what jurisdiction you live in, but in the UK there is the small claims court, which is not expensive (but only for claims up to a few thousand).
I won a £700 claim against a second hand car dealer for selling me a car with a brokenx clutch. It took a bit of work, and there were almost a year waiting time to see a judge, but any expense incurred can be added to the claim. It was a very clear cut case and the judge very clearly explained the process and asked the questions based on the evidence submitted before hand. It was actually a relatively smooth process. The fees came to something like £100 which was added to the claim (had I lost, that would have been non-recoverable)
When the government is suing you as is in criminal courts it is a 8000 pound gorilla, with all resources of state that also runs and pays for every parts of the criminal justice systems, the courts, law enforcement,prison system, prosecution and even your defense lawyer[1] .
The system is not designed to be compassionate or fair or even efficient. You are fighting for your freedom or even life, for everyone in the process else it is just another file they need to move. You get caught in it, no matter if you are found guilty or innocent your life will be altered by the ordeal.
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Civil courts are not like that. Small claims or otherwise, the government is only involved in judging and enforcing the judgements they get paid in fees no matter who wins.
Fighting a large corporation with some protections government system affords (like discovery, precedents, torts, small claims etc) is better in most countries where government is indifferent[2] towards the large Co wining or losing, than fighting the same corp via arbitration managed by a entity who gets bulk of their revenue from large Co.
You are still disadvantaged because Large Co can expend thousands of hours of lawyer time and you don't have the same luxury. It is still better than when the "neutral" third party is being paid by one large Co in your case and thousand other cases they give them as business.
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[1] when you cannot afford one, which is lot of us most of the time.
[2] American criminal justice system is pro business. This is effect of no limits to corporate money allowed in politics and many judicial selections only by election and not appointment, i.e. judges are also politicians who need to fund election campaigns. Even with these disadvantages, they are not as directly being compensated as in arbitration.
While your chances of winning are lower without a lawyer, they’re nowhere near what you’d see on an episode of Suits. It’s more akin to what you’d see on Judge Judy without the cameras and irritating preaching from a judge.
Don’t be glum, chap. You too could be a story on page 8 of the local section regarding your brush with bankruptcy in successfully suing CorpCo for $75,000 after 13 years of appeals.
Theres a concert now by one of my old favorite bands, The Jesus Lizard. I would go with my college buddy, but I'm seriously on the fence bc of Ticket Bastard. I want to support the band, too. Hrmmm
But you're literally using one now, with a forced arbitration agreement that you agreed to, is hackers new commenting literally more important to you than the other services you skip due to arbitration?
You started this thread with "I don't agree to forced arbitration", and we're discussing that you clearly have done so, for something as trivial as commenting.
The whole point is that it's not a matter of you not wanting to sue them now because you "don't pay them anything". What happens if HN/ycombinator does something? Say they offer a service to recommend hire/non-hire for companies based on your comment history, and they for arbitrary/capricious reasons always say "do not hire" (maybe your comment about not agreeing to arbitration agreements), maybe they use "AI" and their service reports you as a "republican democrat homophobic christian anti-christmas woke ..." (e.g. all the keywords that would be needed to ensure that at least one of them would trigger an auto rejection from any company).
The fact that you agreed to arbitration, means you can't sue them in a fair court, and you can't use a class action with all the other victims (class actions exist because the "winning" from a single lawsuit like this is generally low enough to render it infeasible, that's the entire reason for arbitration and anti-class action terms).
The fact the you agreed in the context of commenting on a free service is not relevant at that point.
This is like the Disney "you agreed to arbitration for Disney streaming so you can't sue us for food allergy in a restaurant" (to be fair, as far as I can make out Disney was not responsible in that case, but using the Disney tv arbitration term was clearly bad PR but if they _were_ responsible would be just applicable and just as BS)
THESE TERMS OF USE CONTAIN AN ARBITRATION AGREEMENT, WHICH WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION.
