John Gear Law Office & Salem Consumer Law    503-569-7777
  • Welcome
  • Attorneys and Services
  • Contacts and Directions
  • Law for Real People blog
  • Useful links

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

11/28/2012

1 Comment

 
Picture
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.)

Enter your Email:
Preview | Powered by FeedBlitz
1 Comment
Pattie H
7/20/2016 06:40:47 pm

In addition to controlling all the terms of a contract you are required to sign if you want phone service, cable or satellite tv, or almost anything else...
What I cannot understand is how they get away with the following:
YOU, the customer, are responsible for complying with the terms of this "agreement" (followed by all the penalties and charges you will legally be subject to if you terminate early) and then they have the audacity to state (a few hundred pages later):
"WE MAY CHANGE THE TERMS OF THIS "AGREEMENT" AT ANY TIME" with x number of days notice.
Now, an AGREEMENT is essentially a legally binding CONTRACT, right? And yet ONE PARTY can do whatever they want, while the unprotected customer is beholden to their terms?????
I thought agreement or contract REQUIRED BOTH PARTIES TO COMPLY WITH THE TERMS THEY SIGN UP FOR!!!

Reply

Your comment will be posted after it is approved.


Leave a Reply.

    Author

    John Gear Law Office -
    Since 2010, a values-based Oregon law practice serving Oregon consumers, elders, employees, and nonprofits.

    Categories

    All
    Advertising
    All
    Arbitration
    Autofraud
    Bankruptcy
    Borrowing
    Class Actions
    Consumer Law
    Consumer Protection
    Consumer Protection Class Actions
    Credit
    Credit Reports
    Debt
    Debt Collection
    Elder Abuse
    Elders
    Employment
    End Of Life
    Fairness
    Fdcpa
    Foreclosures
    Fundraising
    Funeral
    Games Car Dealers Play
    Garnishments
    Great Stuff
    Health Care/Insurance
    I (heart) Liz Warren
    Insurance
    Lawyer Referral Service
    Legal Resources
    Lemon Law
    Life Planning
    Long-term Care Facilities
    Media
    Military Assistance Panel
    Modifications
    Mortgages
    N.A.O.
    Nonprofits
    Oregonadminrules
    OregonLaws.org
    Plain English
    Preparing For Departure
    Privacy
    Pro Bono
    Resources
    Right To Repair
    Safety
    Scam
    Scams
    Strategic Planning
    Student Loans
    Tort Reform
    Training
    Used Cars
    Veterans
    Wage Garnishment
    Warnings
    Warranties
    Watchdogs
    Workplace

    Archives

    January 2021
    December 2020
    November 2020
    October 2020
    September 2020
    August 2020
    July 2020
    June 2020
    April 2020
    March 2020
    February 2020
    December 2019
    November 2019
    October 2019
    September 2019
    August 2019
    July 2019
    June 2019
    May 2019
    April 2019
    March 2019
    February 2019
    January 2019
    December 2018
    November 2018
    October 2018
    September 2018
    August 2018
    July 2018
    June 2018
    May 2018
    April 2018
    January 2018
    December 2017
    November 2017
    October 2017
    September 2017
    August 2017
    July 2017
    June 2017
    May 2017
    April 2017
    March 2017
    February 2017
    January 2017
    December 2016
    November 2016
    October 2016
    September 2016
    August 2016
    July 2016
    June 2016
    May 2016
    April 2016
    March 2016
    February 2016
    January 2016
    December 2015
    November 2015
    October 2015
    September 2015
    August 2015
    July 2015
    June 2015
    May 2015
    April 2015
    March 2015
    February 2015
    December 2014
    November 2014
    October 2014
    September 2014
    August 2014
    July 2014
    June 2014
    May 2014
    April 2014
    March 2014
    February 2014
    January 2014
    December 2013
    November 2013
    October 2013
    September 2013
    August 2013
    July 2013
    June 2013
    May 2013
    April 2013
    March 2013
    February 2013
    January 2013
    December 2012
    November 2012
    October 2012
    September 2012
    August 2012
    July 2012
    June 2012
    May 2012
    April 2012
    March 2012
    February 2012
    January 2012
    December 2011
    November 2011
    October 2011
    September 2011
    August 2011
    July 2011
    June 2011
    May 2011
    April 2011
    March 2011
    February 2011
    January 2011

    RSS Feed

Picture

LAWYERLY FINE PRINT:

John Gear Law Office LLC and Salem Consumer Law.  John Gear Law Office is in Suite 208B of the Security Building in downtown Salem at 161 High St. SE, across from the Elsinore Theater, a half-block south of Marion County Courthouse, just south of State Street. There is abundant, free 3-hour on-street parking throughout downtown Salem, and three multi-story parking ramps that offer free customer parking in downtown Salem too.

Our attorneys are only licensed to practice law in Oregon. This site may be considered advertising under Oregon State Bar rules. There is no legal advice on this site so you should not interpret anything you read here as intended for your particular situation. Besides, we are not representing you and we are not your attorneys unless you have hired us by entering into a representation agreement with me. While we do want you to consider us when you seek an attorney, you should not hire any attorney based on brochures, websites, advertising, or other promotional materials.  All original content on this site is Copyright John Gear, 2010-2020.
Photos used under Creative Commons from Tony Webster, brand0con, eirikso, Fibonacci Blue, Jirka Matousek, Rd. Vortex, rcbrazier - Brazier Creative, cogdogblog, marfis75, marcoverch, GWP Photography, byzantiumbooks, Mic V., notacrime, emrank, Family Art Studio, dotpolka, respres, Mark Cummins, a little tune, Insulinde, Bill Wards Brickpile, Roger Chang, AnthonyMendezVO, jonrawlinson, Andres Rueda, Franco Folini, inman news, Pictures by Ann, ph-stop, crabchick, Jilligan86, Elvert Barnes, p.Gordon, CarbonNYC, Digital Sextant, darkpatator, Neil T, rictic, Mr. Mystery, SeanC90, richardmasoner, www.metaphoricalplatypus.com, lindsayloveshermac, Santacreu, =Nahemoth=, ReinventedWheel, LadyDragonflyCC - On Vacation, See you all soon!, Mr. T in DC, Nisha A, markcbrennan, Celestine Chua, Furryscaly, smkybear, CarbonNYC, radioedit, Don Hankins, Henrik Hovhannisyan, CoreBurn, Mike Licht, NotionsCapital.com, David Masters, SeeMidTN.com (aka Brent), SoulRider.222, amboo who?, robwest, Rob Ellis', floeschie, Key Foster, TechCocktail, That Other Paper, marcoverch, oskay, Muffet, rodaniel, Alan Cleaver, Mike Licht, NotionsCapital.com, Horia Varlan, xJasonRogersx, billaday, BasicGov, One Way Stock, mikebaird, Nevado, shalf