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Great summary of why arbitration clauses in consumer contracts undermine the rule of law

11/28/2012

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I got into a brief online discussion of the latest US Supreme Court Inc. decision upholding the "rights" of corporations (fictitious persons that are actually nothing but piles of property given certain permissions) to force consumers into arbitration.

I noted how odd that the folks who were all upset about the Affordable Care Act ("Obamacare") were paying no attention at all to Supreme Court Inc.'s far more radical steps into post-Constitutional law in the area of turning state governments into legal nothings. 

Essentially, since Justice Rehnquist, the main thrust of Supreme Court Inc. has been to dispense with states entirely and turn the US into a single, monolithic entity where corporations are free to to locate in and claim the legal protections of the most backward states, while using a pre-Depression statute, the Federal Arbitration Act, in ways that its authors and courts never imagined it would be twisted. 

Thus, since the 1970s, Supreme Court Inc. has moved to turn real people -- the ones whom the Founders who drafted the Constitution thought government was supposed to serve and protect -- into faceless non-entities who, in any conflict with corporations, should and almost always do lose. 

The apogee (so far) of the Court's decision to enshrine corporate power where the Bill of Rights used to be is the notorious Citizens United decision.  In Citizens United, the corporate power radicals on the Court, with no necessity to reach the issue, undid nearly a century of work to limit the sale of elections to the highest bidder.  And that was just one example of Supreme Court Inc.'s relentless push to endow property with Constitutional rights, even as those rights that are clearly written into the Constitution for protecting people from oppression -- like the 7th Amendment right to civil jury trials -- are turned into dead letters.

Astonishingly, the radical justices most enamored of this ever-expanding, federalism-destroying posture are the ones who like to call themselves "conservative."  (They also love to claim to follow the original intent of the Constitution's framers, regardless of their own personal preferences -- apparently the Founders loved corporate power much more than they thought they did!)  In the exchange, Prof. Peggy Radin of the University of Michigan Law School concisely summed it all up as follows:


      Yes: Arbitration clauses are a threat to federalism because they are ousting state law consumer protection, aggregative remedies, and much else.

     Arbitration clauses are also a threat to the common law itself, and therefore to common law adjudication and the power of common law judges. The more the power to decide disputes is transferred to nongovernmental private parties whose decisions are without any public record and without any precedential value, the more the common law system is undermined. There is no opportunity to know whether like cases are treated alike, and no opportunity to rely upon past decisions in planning future actions.

     Arbitration clauses are also a threat to the rule of law, because they are destroying the right to redress which must be part of a legal system that honors and enforces the rights that it is set up to establish and protect.  They are privatizing what must be public.  The opportunity to rely on public decisions that are precedential in order to plan future actions is also a requisite of the rule of law.  A regime of ad hoc decision making giving no notice to those who are subject to the law violates the rule of law.

     For the same reasons as above, mass market arbitration clauses make a mockery of equality before the law.


(Prof. Radin is the author of "Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law," in which these (and other) issues are discussed.)

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Are you struggling to make it financially, or do you know someone who is?

11/22/2012

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Need help affording or keeping a cellphone? 




Look into Assurance Wireless, a federally funded program to help people with low incomes by making sure that they can have lifeline phone service.  If you qualify, it's a free phone and 250 minutes a month.  CLICK HERE TO LEARN MORE

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Free Workshop on Fraud Detection for Nonprofits

11/13/2012

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One of the hardest things nonprofits do is remember that they are running a business, first, and that "nonprofit" is just a tax status.  In nearly every meaningful way, nonprofits (including religious entities) are no different than any other business -- including that they can sometimes be ripped off, like any other business.

The biggest problem is that people drawn to serve nonprofits and religious organizations are often those whose hearts are so big and trusting that they don't realize that not everyone is like them.  And these big-hearted, trusting people tend to shy away from the kinds of financial controls and policies and procedures that are needed to "keep honest people honest."

One of the ways that I help nonprofits deal with this issue is by discussing with them how terrible it is for the volunteers and employees of the nonprofit when fraud is discovered.  Not only are nonprofits frequently the victims of fraud, but the employees who are unfairly suspected of it are also victimized by fraudsters, often with loss of a job when the organization closes its doors.  And, of course, the donors who supported the organization are victims, because their gifts didn't go to the purposes intended.  Finally, the people that the nonprofit wanted to serve are victimized, not only by the diverted resources but also (often) by the complete closure of the plundered organization.

Bottom line:  Good employees and volunteers welcome good financial controls because they help the organization thrive, and keep those same employees and volunteers from falling under a cloud of suspicion.

As a nonprofit leader, your responsibility to provide good financial controls (strong enough to deter fraud in most cases, and effective enough to detect it rapidly in the rest) is not just a legal duty; it's also a duty you owe to the people you recruit and the people who rely on the benefits your organization offers.  If you don't know what these good financial controls are, why not attend this free workshop and hear from Kirk Harvey, the Oregon Department of Justice's chief investigator.

Seating is limited, please RSVP in advance to assure your seats.  Bring your whole team.

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REMINDER -- Every Season is "Attempt to Scam the Elderly Season"

11/6/2012

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My elderly neighbor called me today with a question about a man who had approached her while she was raking leaves.  He offered to remove the moss from her roof for $150 -- told her he would remove all the moss and leaves, and haul everything away and put an "EPA-Approved" chemical on the roof to keep the moss from coming back.

Luckily, my neighbor is getting wily and she had the sense to tell the guy that she needed to check on him -- she called me, and some things she told me about the guy didn't add up, so I looked for a Construction Contractors Board registration, and I found that he was not a registered landscape contractor even though he was going under the name of a landscaping company (which show up under CCB).  I also called the Attorney General's Consumer Protection office.  More importantly, the guy also shows up in the photo listings of Marion County parole violators.

The take-home lesson:  NEVER let anyone start working for you, especially on your roof or inside your house, without checking on them first.  (You don't want an unlicensed, uninsured person up on your roof, even if they don't intend to rip you off.) 
Also, never do a handshake deal with a door-to-door service provider; make them give you a written contract showing exactly what they are going to do for you and how much it will cost.  If a business is so fly-by-night to not even have contract forms, they are obviously too fly-by-night to hire.  (Conversely, don't be fooled by slick brochures and spiffy forms -- just because they have a truck with signs and matching shirts and slick materials doesn't mean that they aren't also crooks.)

BOTTOM LINE:  Every legitimate service provider -- whether it's a pressure wash of your driveway or removing moss from your roof or washing your windows -- will not object if you say that you want to take their business card and you will call them back if you decide to hire them after you've had a chance to check them out.  Anyone who insists that they're only going to be in your neighborhood today, or that their registration is "too new to show up" or that they'll be too busy to come back later is setting you up.  Send them packing, and call the Construction Contractors Board and the Attorney General to report them. 



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As soon as you are done with voting and election work, send eBay an opt-out too -- Postmarked by Friday!

11/5/2012

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In my haste to warn people about the malicious changes being imposed by PayPal to strip you of your rights under the law, I failed to notice that eBay is doing the same thing, and has an even tighter deadline for responding!  Read the prior post (below) and visit the story for the full details.  The punch line is here:   

If you want to opt out of eBay’s arbitration rules, you’ll need to send a similar letter

postmarked by Nov. 9, to:

eBay Inc.,
c/o National Registered Agents, Inc.,
2778 W. Shady Bend Lane,
Lehi, Utah 84043.

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