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.
“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?
9 comments:
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."
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.
What politics is really about, real life and action. Great post.
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...
Great Post! And Victor, Elizabeth Warren is exactly the right person to take up this cause once her attention returns from skewering tRump
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.
Jeff,
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
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.
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.
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