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Kawasaki Nun posted:I haven't seen any indication that people are upset about the FAA, though it does appear to be a dubiously applied policy that should generate some amount of popular discontent. Do people just not notice arbitration clauses and forced arbitration proceedings because they are generally locked out of the court system due to the high cost of entry or what? People don’t have any individual leverage to force companies not to include binding arbitration language in every contract, and the companies in question have captured the government apparatus that would ostensibly be the people's collective representation, so there's no downside for any company to require binding arbitration for literally everything. This system is called “capitalism.”
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Jan 9, 2019 18:05
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Kawasaki Nun posted:I haven't seen any indication that people are upset about the FAA, though it does appear to be a dubiously applied policy that should generate some amount of popular discontent. Do people just not notice arbitration clauses and forced arbitration proceedings because they are generally locked out of the court system due to the high cost of entry or what? You wouldn't see them because people who are unable to access the court system due to prohibitive arbitration are almost definitionally invisible. They can't get their foot in the courtroom, they can't find lawyers to take their cases, etc. Back when all the Cletus Safari articles interviewing trump voters were more common, one frequent refrain in them was folks who had had legitimate claims against former employers, workplaces, etc. but had gotten shut out of the courtroom by technical barriers (among them, forced arbitration). It all contributes to the general malaise and anger at the "rigged system."
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Jan 9, 2019 18:09
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Zoran posted:People don’t have any individual leverage to force companies not to include binding arbitration language in every contract, and the companies in question have captured the government apparatus that would ostensibly be the people's collective representation, so there's no downside for any company to require binding arbitration for literally everything. To add to this: Most any software/contract agreement forces you into accepting 'third party arbitration' in order to use it, including cell phones and other electronics, some software, and so forth. It's *incredibly* pervasive in the consumer market and after a ruling a number of years back a bunch of EULAs were updated that required you to agree to arbitration to continue using something you bought previously.
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Jan 9, 2019 18:31
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Discendo Vox posted:The international inter-business form of arbitration, and other forms of dispute resolution, should definitely be permitted; there are harms there, but not nearly of the same scope (and not of the same form) as the sticky shrink wrapped contract type Why. It's not like businesses are somehow prevented from hiring anyone they want to resolve their dispute. They can still do that, a judge isn't going to show up and make them sue each other in federal court if the FAA goes away completely.
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Jan 9, 2019 19:19
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VitalSigns posted:Why.
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Jan 9, 2019 20:17
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Dead Reckoning posted:If the arbitration is just a gentleman's agreement and isn't actually legally binding, then whichever party loses is just going to immediately turn around and sue. Unless both parties feel the arbitration is fair and a good predictor of a trial outcome. Or the outcome is not 100% win / lose - I say you broke our contract and sue you for 100K, you say you are blameless, arbiter says you are responsbile but after mitigation my losses are only 50K. Would you immediately sue after that?
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Jan 9, 2019 20:28
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Dead Reckoning posted:If the arbitration is just a gentleman's agreement and isn't actually legally binding, then whichever party loses is just going to immediately turn around and sue. Contracts are not gentleman's agreements. They are legally binding. Sophisticated parties can agree to binding arbitration without the FAA.
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Jan 9, 2019 20:29
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VitalSigns posted:It's not like businesses are somehow prevented from hiring anyone they want to resolve their dispute. They can still do that, a judge isn't going to show up and make them sue each other in federal court if the FAA goes away completely. Dead Reckoning posted:If the arbitration is just a gentleman's agreement and isn't actually legally binding, then whichever party loses is just going to immediately turn around and sue. And, prior the FAA, arbitration agreements were very difficult to enforce either in federal or state court, as seen in the years after the FAA when courts kept trying to carve out exceptions. Mr. Nice! posted:Contracts are not gentleman's agreements. They are legally binding. Sophisticated parties can agree to binding arbitration without the FAA. The pre-FAA legal landscape wrt arbitration suggests this is untrue. Some citations in here: https://fas.org/sgp/crs/misc/R44960.pdf ulmont fucked around with this message at 20:33 on Jan 9, 2019 |
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Jan 9, 2019 20:31
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mortal posted:Unless both parties feel the arbitration is fair and a good predictor of a trial outcome. Or the outcome is not 100% win / lose - I say you broke our contract and sue you for 100K, you say you are blameless, arbiter says you are responsbile but after mitigation my losses are only 50K. Would you immediately sue after that?
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Jan 9, 2019 20:54
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Dead Reckoning posted:If the arbitration is just a gentleman's agreement and isn't actually legally binding, then whichever party loses is just going to immediately turn around and sue. But then they will have to pay legal fees and court costs all over again, so if the court reaches a similar conclusion the loser is out even more money. Unless the loser has good reason to believe that the arbitrator did such a poor job that the court will likely come to a radically different ruling then it's not worth the risk, and cases where the arbitrator did that bad probably should be corrected even if it's not 'gentlemanly' or whatever?
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Jan 9, 2019 20:57
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Dead Reckoning posted:If both parties are satisfied with the arbitration outcome, then whether or not it was legally binding is immaterial. The whole point in a party seeking binding arbitration (and taking on the costs involved) instead of direct negotiation is because they want an outcome that the other party is obliged to respect even if the other party is not satisfied. If, after the arbitrator tells me I owe you $50k, I tell you and the arbitrator to go pound sand because their decision is not legally binding, are you going to sue me? No, not if the court is going to say I owe you $50k but now I had to spend another $10k just to hear it from them? E: Oh wait I got your question backwards. Yes, because even if it costs me $10k I'll still get my $50k, and if you think I'm going to do it then your choice is between paying $50k now or $50k plus your legal fees later?
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Jan 9, 2019 20:59
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oh nuking the FAA wont just help average people, but also make life worse for rich people? Hell yeah!
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Jan 9, 2019 21:01
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mortal posted:Unless both parties feel the arbitration is fair and a good predictor of a trial outcome. Or the outcome is not 100% win / lose - I say you broke our contract and sue you for 100K, you say you are blameless, arbiter says you are responsbile but after mitigation my losses are only 50K. Would you immediately sue after that? What if the lawsuit is over $10 million, and the arbitrator says the loser is at fault but generously lets them off with only having to pay $5 million? If the loser genuinely thinks that they're not at fault, then paying more legal fees for the chance of being let out of that $5 million ruling is an easy choice. The same is true if the $5 million will bankrupt the company anyway; losing doesn't hurt them and winning could save the company. Treating it as a purely hypothetical question is silly, because there's plenty of documented cases of companies losing arbitration and then trying to drag the case to regular court instead. There's nothing wrong with two equal parties contractually agreeing to arbitration. The problem is when companies start attaching arbitration requirements to deeply unequal relationships.
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Jan 9, 2019 21:12
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If the arbitrator makes a $5 million mistake that the court wouldn't have made, surely that's evidence for letting it go to court if not scrapping arbitration altogether, not a reason to let $5 million mistakes stand because it's the 'gentlemanly' thing to do.
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Jan 9, 2019 21:13
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If you're seeking an award that will bankrupt your opponent if you get it, you should probably take it to court and get a legally binding final-say judgment in the first place if you want to be sure you get all your money. FAA or no FAA.
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Jan 9, 2019 21:16
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VitalSigns posted:No, not if the court is going to say I owe you $50k but now I had to spend another $10k just to hear it from them? I feel like you're missing my point here. If contracts requiring both sides to accept the judgement of an arbitrator are not enforceable in the same way as other contracts (aka, we outlaw binding arbitration clauses), then why would I go to the effort of showing up to an arbitration hearing, or the expense of paying my attorneys to show up, if the only possible outcomes are 1) I get a judgement that I cannot collect on unless I re-litigate the question from square one in court, or 2) the arbitrator makes a judgement against me that I can safely ignore unless the other party is willing to re-litigate the question from square one in court?
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Jan 9, 2019 21:30
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I think it's about time the legal system recognizes that a human being is literally incapable of reading and understanding every nuance of every EULA or contract they're expected to sign to do things required to live a normal life. Actually I feel like I remember an article where somebody did the math and proved it was legitimately impossible given reading speeds and the number of the loving things you get thrown at you these days. However, corporations aren't people and we shouldn't treat them as such. If a multibillion dollar company with a literal legion of lawyers going over every sentence with a microscope doesn't like the results of the arbitration they agreed to be bound by, tough titty.
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Jan 9, 2019 21:35
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Dead Reckoning posted:So why did we go to arbitration in the first place if the only way to collect your judgement is to re-litigate the issue in court, where the arbitrator's decision has no value? Because going back to court will cost the loser even more money too, so it's only worth it if they have reason to believe the arbitrator made a mistake that the court will correct. That's your leverage over the loser "pay up or the court will make you pay up on top of the costs of your defense". If you don't think this threat will be effective if you win at arbitration then you should probably go to court in the first place. Your opponent can still refuse to pay a settlement in arbitration under the FAA and still force you to go to court to get a judgment and seize assets and put you through all kinds of hoops to get your money. If they think you won't be willing to deal with hassle they can still hassle you now.
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Jan 9, 2019 21:42
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Javid posted:I think it's about time the legal system recognizes that a human being is literally incapable of reading and understanding every nuance of every EULA or contract they're expected to sign to do things required to live a normal life. Actually I feel like I remember an article where somebody did the math and proved it was legitimately impossible given reading speeds and the number of the loving things you get thrown at you these days. idc about corporations being sad, but I don't think the upside of making winning corporations a little happier is worth the risk that they leverage their power over the political system to get their parallel justice system applied to everyday people just like they actually did in reality when we created a system intended to be just for them.
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Jan 9, 2019 21:45
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no we should definitely be okay with a legal system that sounds like it came from Snow Crash, sounds very normal and healthy
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Jan 9, 2019 23:10
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Javid posted:I think it's about time the legal system recognizes that a human being is literally incapable of reading and understanding every nuance of every EULA or contract they're expected to sign to do things required to live a normal life. James B. Nutter & Co. v. Estate of Murphy, 478 Mass. 664, 669-670 (2018) posted:These familiar principles are supplemented with more specific rules of construction where, as here, the contracts at issue are standardized contracts of adhesion. Although typically when confronted with ambiguous language a court will examine extrinsic evidence to determine what the parties meant the contract to say, see Bank v. Thermo Elemental Inc., 451 Mass. 638, 648-649 (2008), such an inquiry is impracticable where the nondrafting party had no ability to influence the language of the contract. See Restatement (Second) of Contracts § 211 comment c (1981) ("The customer [in a standardized agreement] . . . is commonly not represented in the drafting"). Thus, when interpreting adhesion contracts, we seek to effectuate, not the actual intentions of the parties in each transaction, but instead the meaning an objectively *670 reasonable person in the nondrafting party's position would give to the language in the contract. See, e.g., Golchin v. Liberty Mut. Ins. Co., 466 Mass. 156, 159-160 (2013) (standard insurance policies must be interpreted in light of "what an objectively reasonable insured . . . would expect to be covered" [citation omitted]). See also Restatement (Second) of Contracts, supra at § 211 comment e ("courts in construing and applying a standardized contract seek to effectuate the reasonable expectations of the average member of the public who accepts it").
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Jan 9, 2019 23:31
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ulmont posted:(standard insurance policies must be interpreted in light of "what an objectively reasonable insured . . . would expect to be covered" [citation omitted]). See also Restatement (Second) of Contracts, supra at § 211 comment e ("courts in construing and applying a standardized contract seek to effectuate the reasonable expectations of the average member of the public who accepts it"). 
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Jan 9, 2019 23:39
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VitalSigns posted:If the arbitrator makes a $5 million mistake that the court wouldn't have made, surely that's evidence for letting it go to court if not scrapping arbitration altogether, not a reason to let $5 million mistakes stand because it's the 'gentlemanly' thing to do. What's with this fixation on the ruling being a "mistake"? If there's actual misconduct on the part of the arbitrator, then sure, send it to court, but most of the time it's just someone who signed away their ability to appeal (in order to sign away the other party's ability to appeal) and then decides they want to wriggle out of it and appeal anyway.
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Jan 9, 2019 23:39
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Main Paineframe posted:What's with this fixation on the ruling being a "mistake"? If there's actual misconduct on the part of the arbitrator, then sure, send it to court, but most of the time it's just someone who signed away their ability to appeal (in order to sign away the other party's ability to appeal) and then decides they want to wriggle out of it and appeal anyway. Why is that bad. Mistakes are made all the time without someone engaging in actual misconduct, that's why appeals exist. Maybe people signing away their right to appeal bad decisions is a negative thing that leads to more unjust outcomes overall.
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Jan 9, 2019 23:48
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People shouldn't be able to sign away their right to appeal, sue, or so on. This shouldn't be hard to understand.
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Jan 10, 2019 01:46
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VitalSigns posted:Why. A lot of the global economy would get a lot less stable if ADR weren't generally treated as binding to participants, with the backing of governments. At the international scale, ADR represents a way to settle issues much faster, much cheaper, much quieter, and with much more certainty and safety than through court systems. There are institutional problems with many aspects of the ADR system, but the fact that they can be a binding contract element isn't really one of them, where institutional parties have parity in initial negotiation. I didn't say anything about the FAA specifically, but yes, it facilitates the existence of ADR systems in a variety of ways. One of its consequences is that parties tend to settle before an arbitration award occurs. Discendo Vox fucked around with this message at 01:56 on Jan 10, 2019 |
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Jan 10, 2019 01:54
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Discendo Vox posted:A lot of the global economy would get a lot less stable if ADR weren't generally treated as binding to participants, with the backing of governments. At the international scale, ADR represents a way to settle issues much faster, much cheaper, much quieter, and with much more certainty and safety than through court systems. There are institutional problems with many aspects of the ADR system, but the fact that they can be a binding contract element isn't really one of them, where institutional parties have parity in initial negotiation. I didn't say anything about the FAA specifically, but yes, it facilitates the existence of ADR systems in a variety of ways. One of its consequences is that parties tend to settle before an arbitration award occurs. Bring back class actions when AT&T overcharges 15 million people by $5 each and you can keep the rest of the FAA "Sorry, you agreed to non-collective arbitration"
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Jan 10, 2019 02:03
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Devor posted:Bring back class actions when AT&T overcharges 15 million people by $5 each and you can keep the rest of the FAA Discendo Vox posted:The international inter-business form of arbitration, and other forms of dispute resolution, should definitely be permitted; there are harms there, but not nearly of the same scope (and not of the same form) as the sticky shrink wrapped contract type Discendo Vox posted:A lot of the global economy would get a lot less stable if ADR weren't generally treated as binding to participants, with the backing of governments. At the international scale, ADR represents a way to settle issues much faster, much cheaper, much quieter, and with much more certainty and safety than through court systems. There are institutional problems with many aspects of the ADR system, but the fact that they can be a binding contract element isn't really one of them, where institutional parties have parity in initial negotiation.I didn't say anything about the FAA specifically, but yes, it facilitates the existence of ADR systems in a variety of ways. One of its consequences is that parties tend to settle before an arbitration award occurs. C'mon, read my posts when you respond to them.
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Jan 10, 2019 02:16
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Evil Fluffy posted:People shouldn't be able to sign away their right to appeal, sue, or so on. This shouldn't be hard to understand. People shouldn't, I don't think anyone in the thread disagrees. I just don't care terribly much if two corporations choose to make that deal with each other, since they actually CAN negotiate on equal(ish) footing and understand what they're agreeing to. Plus, as others have mentioned, it actually serves a purpose there, whereas when it's corporation vs. consumer the purpose is "gently caress you".
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Jan 10, 2019 02:17
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At least the binding arbitration stuff is loving over Uber. https://gizmodo.com/ubers-arbitration-policy-comes-back-to-bite-it-in-the-a-1830892372
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Jan 10, 2019 02:21
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Javid posted:People shouldn't, I don't think anyone in the thread disagrees. I just don't care terribly much if two corporations choose to make that deal with each other, since they actually CAN negotiate on equal(ish) footing and understand what they're agreeing to. Plus, as others have mentioned, it actually serves a purpose there, whereas when it's corporation vs. consumer the purpose is "gently caress you". It often fucks over small corporations pretty hard too. Large corporations tend to treat small vendors pretty badly.
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Jan 10, 2019 03:57
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TheDeadlyShoe posted:It often fucks over small corporations pretty hard too. Large corporations tend to treat small vendors pretty badly. "Terms are net 90 starting from when we get a nasty gram from your lawyer"
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Jan 10, 2019 04:02
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hobbesmaster posted:At least the binding arbitration stuff is loving over Uber. I wonder why that doesn’t happen more often. I guess there’s no right to speedy arbitration baked into the contract, so Uber can just stall? LOL though at “18.7 million dollars golly”. That doesn’t even make it to the board as a financial matter, I suspect. The filing fees are nothing compared to the cost of responding in the context of the arbitration, even if the cases are all virtually identical. Their outside counsel had to see a doctor after four hours.
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Jan 10, 2019 04:08
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Uber going back to the judge that dismissed the class action and whining that the old class action plaintiffs are now each filing arbitrations is precious though.
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Jan 10, 2019 04:13
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hobbesmaster posted:Uber going back to the judge that dismissed the class action and whining that the old class action plaintiffs are now each filing arbitrations is precious though. Bbbbbut, they were all just supposed to go away after class cert denial! 
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Jan 10, 2019 04:15
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hobbesmaster posted:Uber going back to the judge that dismissed the class action and whining that the old class action plaintiffs are now each filing arbitrations is precious though. That’s hilarious. “Your honour, these creatures are doing exactly what we constructed the contract to force them to do!”
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Jan 10, 2019 04:16
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I'm just waiting for the first "arbitration has to actually happen for it to be binding, right?" case to make it to SCOTUS. And them ruling forever minus one day is a "finite time" so stalling is OK.
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Jan 10, 2019 05:10
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Harik posted:And them ruling forever minus one day is a "finite time" so stalling is OK. Zeno's Statute of Limitations
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Jan 10, 2019 16:48
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Harik posted:I'm just waiting for the first "arbitration has to actually happen for it to be binding, right?" case to make it to SCOTUS. A federal judge and their arbiters seem kinda mad at Uber so something might happen.
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Jan 10, 2019 17:10
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hobbesmaster posted:Uber going back to the judge that dismissed the class action and whining that the old class action plaintiffs are now each filing arbitrations is precious though. Wow that's so incredibly...honest. "Your honor, denying their class action suit doesn't deprive them of remedy for their complaint because they are all free to bring individual arbitration claims...whoa hey you can't expect us to handle that many claims can we just ignore them"
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Jan 10, 2019 17:35
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