Saturday, August 06, 2016

Since when does the U.S. Constitution allow us to sign away our rights for the privilege of survival?

Enough already with election wonkery and outrageous Trumpfoolery. Do you mind if just for one post, just this once, I change the subject? No? It’s okay with you? Thanks. Now play along with me.

Imagine you’re crawling on hands and knees across Death Valley, in California. It’s July. It’s 107 degrees. You have no water. You’re dehydrated. You’re thirsty.

Suddenly a truck drives up.

“Need some water, friend?” the driver asks.

“Yes thanks.”

“Okay,” he says. I’ve got a whole icy-cold tank of it here. Gallons and gallons of the stuff. More than enough for you to survive on. Just sign this.”

And he pulls out a 30-page document, set in mouse-type print, on wide measure, while you rest on your hands and knees, panting.

Have a good long drink
 of water, sucker!

“What is that?” you ask.

“Terms and conditions of service for water. A user agreement which I can change at any time although you can’t. It’ll only take you a couple of hours to study. Well, maybe three or four. Plus a law degree. Sorry, I can’t let you have any of my water until you sign.”

Hey, you can’t get by without water. And you don’t have two hours to wade through the fine print. You sign.

As promised, he gives you water. All the water you want. Then he claps a pair of handcuffs and a pair off leg irons on you.

“It’s off to the plantation with you, kid,” he says, “You’ve just voluntarily surrendered your right to life and liberty to me. Fair and square. It says so right here in the contract you just signed. And don’t tell me you didn’t read the contact. It says right here, ‘I have read this contract and I agree to all its provisions.’”

No no, you can’t do that.
Not even if you want to.

Of course, in modern America, at least since the mid-19th Century, slavery has been against the law. Period. The United States Constitution, and specifically the 13th Amendment clearly states, “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

In other words, unless you’ve been found guilty of a crime, nobody can compel you to work for him, to wake up and go to sleep when he tells you, to eat what you’re told, when you’re told; nor can anybody buy and sell you. And you can’t sell yourself into slavery. No matter what you sign. At least not in this country. Says so in the United States Constitution.

Hey, has anyone here read
the Seventh Amendment?

Now let’s consider the Seventh Amendment to the U.S. Constitution. It says: “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”

In other words, for any civil matter worth arguing about, you’re entitled to a trial by jury. Still with me?

Now, why is it that if you can’t sign your right to freedom away and decide to become a slave, you can sign away your right to a jury trial that would enable you to seek justice in commercial matters?

Yet you do this almost every time you buy a service on the Internet, purchase a computer, acquire software, open a bank account, apply for a credit card, or in many cases, take a job.

You usually agree — far in advance of any possible negative event or dispute — to arbitration, with an arbitrator who depends for his living on the company you’re arbitrating against. Guess how that’s going to turn out?

Choice? What choice?

Please don’t tell me you’ve the choice not to buy or sign up for any of those things that make you sign away your rights. In today’s high tech society, software, and a computer, and a cell phone, and a credit card, not to mention a job, are just as necessary to sustaining life as water. See how far you’ll get in this without a bank account, or a credit card, or a computer, or a cell phone, or a job.

Further, the cost to you of the arbitration may be outrageous and the odds of getting full justice slim. You may have to arbitrate in a distant state where the company you signed on with locates its business. And that may apply even if the seller solicited you for his merchandise in your own state and sold you the product in your own state.

Moreover, you can’t join with others who’ve been ripped off by the same company in a class action suit, because you’ve all waived your rights to sue when you signed those humongous contracts.

To be fair, in some circumstances, arbitration may be to the mutual advantage of buyer and seller. So it makes sense to give both of you the right to arbitrate at the time you get into the dispute, if you then both agree to that. But most of the time, arbitration is clearly to the seller’s advantage. And you have no choice, because you signed your rights away before you realized you were going to get ripped off.

Hey it’s election year. So grab
your representative’s ear now.

So, fellow computer owners, software users, salary earners, bank depositors, brokerage account customers, credit card spenders, car loan and mortgage payers, cell phone callers — even seekers of romance through online dating services — it’s time to contact your congressmen and senators. Tell them you want an end to forced arbitration. Insist that arbitration should permitted only if both parties agree to it at the time a dispute arises.

If we can put an end to forced arbitration we’ll go a long way toward ending company bullying, slipshod manufacturing, predatory lending, and sometimes even homicidal neglect. And even if the Congress remains sclerotic after the next election, people who’ve been forced to sign away their rights can start thinking about bringing the issue before appeals courts.

If you can’t sell yourself into slavery, why should you be permitted to sell your soul to some greedy industrialist who will leave you stranded in the 19th Century if you don’t surrender your rights when you use today’s essential services?


Danp said...

Great point, Crank. Like warnings attached to prescription or OTC drugs, it's not that we are too lazy to read the fine print, or are too naive to consider it. It's that we don't have the means to assess the risk, or the options to avoid it.

Also, it's a fair bet that pure capitalism will never result in a company advertising, "unlike our competitors, we allow law suits."

Theo said...

Lina Khan's 2014 article, "Thrown Out of Court: How corporations became people you can't sue", at The Washington Monthly is a lengthy, but good history of the rise of arbitration since the 1980s.

Ed Kilgore's 2015 article, "'Religious' Corporations Leaning on the Everlasting Arms of Private Arbitrators", references a New York Times series on some companies which specify religious arbitrators, thus producing real Christian "Sharia" law for example.

Yastreblyansky said...

What politics is really about, real life and action. Great post.

Victor said...

This BS is why (now) Sen. Elizabeth Warren's "dream-child," the CFPB, is so important - and why the conservatives would love to eliminate or privatize that!
Right after SS, Medicare, Medicaid, S-CHIP, etc...

Maxwell's Demon said...

Great Post! And Victor, Elizabeth Warren is exactly the right person to take up this cause once her attention returns from skewering tRump

Jeff Ryan said...

One point: That portion of the Seventh Amendment, guaranteeing a right to jury in civil suits, has never been held to apply to the states.

So as a matter for federal constitutional law, there is no such right at the state court level.

The New York Crank said...


Surely if, in New York, I purchase a service or a product from a company located, say, in Cupertino California, we clearly have some interstate commerce occurring, whether or not the company is shipped across state lines by the USPS, FedEx, or the government-regulated Internet.

So whether the Seventh Amendment is held to apply to the states, there is certainly grounds for so applying it.

Yours very crankily,
The New York Crank

Jeff Ryan said...

It only applies in federal court.

And interstate commerce alone doesn't get you into federal court. If the Cupertino company is "doing business" in New York (as "long-arm" statutes define it), then it is amendable to suit in New York courts.

I think most state constitutions provide some sort of right to a jury in certain civil suits (not in suits in equity, money suits). But you can't demand a jury trial in state court based on the Seventh Amendment.

trnc said...

The Constitution only applies to the relationship between the gov't and it's citizens, not between private parties. I love the idea of doing away with arbitration, but the Constitution doesn't prevent it.