Supreme Court:AT&T can force arbitration,block class-action

[Simon_Jester]

The reason to object to this is that it further strengthens corporations' ability to engage in questionable or exploitative business practices, by making it harder to sue them. And in practice, it is quite easy for corporations to hire biased arbitrators, and quite difficult for citizens to object without getting sucked into costly legal battles that their individual resources cannot support.

This and related trends have been getting increasingly out of hand for the past few decades- the legal rights of corporations, and ability of corporations to place limits on the legal recourse of others against them, keep getting stronger.

Just looking at this in terms of balance of power and the need for social checks and balances, it's not hard to see why people think this is a bad trend and thus condemn the ruling for being a part of it.

[Andrew J.]

Even with unbiased arbitrators, corporations usually have an advantage because of their superior institutional experience with the process.

[Master of Ossus]

The reason to object to this is that it further strengthens corporations' ability to engage in questionable or exploitative business practices, by making it harder to sue them. And in practice, it is quite easy for corporations to hire biased arbitrators, and quite difficult for citizens to object without getting sucked into costly legal battles that their individual resources cannot support.

Evidence?

Most studies have concluded that arbitrators give out larger awards to individuals than they receive in litigation.

How is it "quite easy for corporations to hire biased arbitrators?" Provide evidence.

Moreover, how the hell is it "quite difficult for citizens to object without getting sucked into costly legal battles that their individual resources cannot support?" Particularly given that AT&T's arbitration clause involves AT&T paying for all costs of arbitration, including attorney's fees, and paying a premium if the arbitrator gives an award to the individual. How is it costly to go into arbitration (which itself is MUCH less costly than litigating) if the other guy is paying for it?

This and related trends have been getting increasingly out of hand for the past few decades- the legal rights of corporations, and ability of corporations to place limits on the legal recourse of others against them, keep getting stronger.

What? You mean that if someone contracts with a corporation they have to abide by the terms of the contract?

Just looking at this in terms of balance of power and the need for social checks and balances, it's not hard to see why people think this is a bad trend and thus condemn the ruling for being a part of it.

You mean people who don't understand the issue, don't understand the ruling, and overplay it as affecting all contracts (and even permitting slavery in the country)?

Even with unbiased arbitrators, corporations usually have an advantage because of their superior institutional experience with the process.

To the extent that this is true, it is also the case with litigation (which is the alternative). Moreover, AT&T's arbitration clause includes paying reasonable attorneys' fees. If you hire an attorney, it hardly seems like you can claim some dramatic disadvantage in institutional experience.

[Bakustra]

Jesus Christ, you fucking illiterate, breaking sentences into fragments is a horrific butchery of syntax.

In addition to all the other points people brought up, this requires individual arbitration. Paradoxically, this should take up more time than a class-action, as every wronged customer has to go through the arbitration on their own, but in practice I doubt that the arbitration would be fair. The advantage of class-action is that a class of people with the same legal complaint/tort can file as a group and thus be addressed as a group. This can lend weight to their claims- if you have a class of 8,000 people complaining about an exploitative advertising campaign, that's a whole lot more weighty than 8,000 individual cases spread across the country would be. In addition, it's easier and quicker to address group concerns as a group. But in individual arbitration, it's a whole lot easier for companies to hire biased arbitrators,

That's explicitly barred by other cases on point in the past. Under AT&T's provision, the customer chooses the arbitrator.

Yes, because clearly the customers will have sufficient experience to select a decent arbitrator, and because AT&T is the sole corporation making use of arbitration clauses!

bully customers into signing agreements,

How?

I don't know. You tell me how a company can force disgruntled customers to choose between an unfamiliar process of arbitration, (which rarely decides in favor of the customer) or accepting an agreed cash settlement as a panacea, especially given the court case that we're discussing here.

and generally marginalize complaints even if the arbitration is fair,

How does one minimize a complaint when there's a $7500 premium for bringing a valid complaint that the company doesn't offer to settle, in full, prior to the decision?

Well, see, I used marginalize rather than minimize for a reason, because-

not to mention that it really ought to take up more of their time than a simple class-action suit would.

That's debatable, but in any case the objective is almost certainly to limit the value of individual decisions as precedent.

You answered this yourself, you idiot- it reduces any impact that complaints may have on a legal level by preventing any precedent from being set! What are we even arguing about- you admit that this is corporatist as fuck, though you probably don't consider it a negative for the laboring classes that any complaints they have about business practices can just be ignored for cash now.

What? You mean that if someone contracts with a corporation they have to abide by the terms of the contract?

Can't overlook this now- so if I provided you with a boilerplate contract that had buried in it provisions for you to serve as my personal sexual slave and live-in maid in exchange for a credit card renewal, and you signed it, would you simply think "well, I guess I have to abide by the terms of this contract" and drop trou? It turns out that some people might view certain practices, like barring individuals from legal recourse, as being inherently exploitative and unjust, and therefore feel that such contractual terms ought to be automatically invalid.

[Master of Ossus]

Jesus Christ, you fucking illiterate, breaking sentences into fragments is a horrific butchery of syntax.

Yes, because clearly the customers will have sufficient experience to select a decent arbitrator, and because AT&T is the sole corporation making use of arbitration clauses!

And their attorneys don't have experience with this?

I don't know. You tell me how a company can force disgruntled customers to choose between an unfamiliar process of arbitration, (which rarely decides in favor of the customer) or accepting an agreed cash settlement as a panacea, especially given the court case that we're discussing here.

Because the cash settlements of claims are a perfectly reasonable way of resolving disputes. What the fuck is unreasonable about this? Especially because then the customer has the opportunity to fight the case, anyway, and if they win they win a massive premium over what the arbitrator chooses to award.

As for your article, it does not support your claims at all. It's an article railing against a particular form of arbitration that wasn't at issue in this case. Further, whether or not arbitrators often rule in favor of the consumer is not relevant. The issue is whether, on average, they offer greater or lower payouts than courts (because so many customer disputes are frivolous and only sometimes should the customer win even in the cases with some merit). And arbitrators do. So consumers who do sign mandatory arbitration contracts like the one that AT&T uses get: higher average payouts, guaranteed costs (even if they lose), a substantial premium if they win. How is this a bad thing?

and generally marginalize complaints even if the arbitration is fair,

How does one minimize a complaint when there's a $7500 premium for bringing a valid complaint that the company doesn't offer to settle, in full, prior to the decision?

Well, see, I used marginalize rather than minimize for a reason, because-

Way to address the point. How does it marginalize a complaint to pay a massive premium, and costs (even if the consumer loses), with a higher average consumer payout?

You answered this yourself, you idiot- it reduces any impact that complaints may have on a legal level by preventing any precedent from being set! What are we even arguing about- you admit that this is corporatist as fuck, though you probably don't consider it a negative for the laboring classes that any complaints they have about business practices can just be ignored for cash now.

No, I don't see how that's "corporatist as fuck." If you give people a substantial incentive to arbitrate against you, that's not unfair to the other party.

Can't overlook this now- so if I provided you with a boilerplate contract that had buried in it provisions for you to serve as my personal sexual slave and live-in maid in exchange for a credit card renewal, and you signed it, would you simply think "well, I guess I have to abide by the terms of this contract" and drop trou? It turns out that some people might view certain practices, like barring individuals from legal recourse, as being inherently exploitative and unjust, and therefore feel that such contractual terms ought to be automatically invalid.

Oh I see, so mandating ahead of time that if there is a dispute then it should be handled by an arbitrator of your choosing, to use a process which is seen by every state government AND the federal government as being a perfectly legitimate alternative to litigation, with costs to be paid by the other party and a massive premium if you win is equivalent to forcing you into sexual slavery.

[Simon_Jester]

Evidence?

Most studies have concluded that arbitrators give out larger awards to individuals than they receive in litigation.

How is it "quite easy for corporations to hire biased arbitrators?" Provide evidence.

Do they not have the power to pick the arbitrators? To say "okay, here's the arbitration meeting" to people who come to them with a complaint?

Moreover, how the hell is it "quite difficult for citizens to object without getting sucked into costly legal battles that their individual resources cannot support?" Particularly given that AT&T's arbitration clause involves AT&T paying for all costs of arbitration, including attorney's fees, and paying a premium if the arbitrator gives an award to the individual. How is it costly to go into arbitration (which itself is MUCH less costly than litigating) if the other guy is paying for it?

To object to the choice of arbitrator; is it that hard for you to read and understand what people say?

This and related trends have been getting increasingly out of hand for the past few decades- the legal rights of corporations, and ability of corporations to place limits on the legal recourse of others against them, keep getting stronger.

What? You mean that if someone contracts with a corporation they have to abide by the terms of the contract?

Stop. Think.

What are the limits on that? There has to be a limit: I cannot be bound by the corporation's contract to commit a crime, for one.

But beyond that, there should be other limits.

The corporation shouldn't use contracts to force consumers to forgo reasonable protections against corporate malpractice.

If they refuse to render services, they cannot expect payment.

The customer has a right to not have the terms of service altered arbitrarily in ways that make the product less useful (but more profitable) after the fact, by a supplier who's exploiting the fact that their product is now a sunk cost for their customer base.

The customer has a right to some reasonable definition of fair use- there have to be limits on the level of copyright and trademarking a corporation can enforce via user licensing agreements.

For all these reasons and more, it is important that consumers be able to sue when they are harmed financially or physically by a corporation's actions.

Most importantly, contracts are not holy. They are deals we have in society to formalize economic relationships; if a certain form of economic relationship is deemed bad for society, we have every reason to adjust our contract law accordingly. Contracts are a tool, not a purpose, and as such the list of what kind of terms can be put into a contract is, and must be, limited.

You answered this yourself, you idiot- it reduces any impact that complaints may have on a legal level by preventing any precedent from being set! What are we even arguing about- you admit that this is corporatist as fuck, though you probably don't consider it a negative for the laboring classes that any complaints they have about business practices can just be ignored for cash now.

No, I don't see how that's "corporatist as fuck." If you give people a substantial incentive to arbitrate against you, that's not unfair to the other party.

Ahem.

You ignored that point.

Arbitration- and I hadn't thought of this- does not set legally binding precedents.

Precedent plays an important role in law, because it builds up a body of judgments we can look back on- that set standards we can use in future cases to decide what does and does not cross the line into criminal activity. We can shape future laws (and contracts) in light of precedents set by previous cases, and when judicial precedent establishes a right or a restraint on the law (or contracts), that limit stays in place. It is not arbitrary or capricious, and there exist higher courts that can slap down bad decisions by a lower one.

Whereas a decision made by an arbitrator is, well, arbitrary. They can judge for a customer one day, then turn around and judge for a corporation under the same conditions the next day. Nothing is set in stone, it's all up to the arbitrators, and the arbitrators are chosen and paid by the corporations. They can change the rules that govern how they make their judgments at will, to serve whatever end they see fit.

And there is no higher court of appeals, the arbitrator's decision is binding unless you, personally, wish to challenge the ruling in a court of law and can find grounds to do so. Good luck doing so out of your own resources- if for example the arbitrator is taking bribes, you're probably never going to find out.

This is a bad way to make law, or a substitute for law. Imagine what would happen if we applied the same standard to corruption trials- if an official accused of accepting bribes could submit the matter for "arbitration" to a judge he chooses and who is paid out of the politician's pocket? How much harder would that make it to get a judgment against the corrupt official?

[Master of Ossus]

Do they not have the power to pick the arbitrators? To say "okay, here's the arbitration meeting" to people who come to them with a complaint?

Not usually, and certainly not under AT&T's arbitration clause.

To object to the choice of arbitrator; is it that hard for you to read and understand what people say?

I think it's retarded. Even under Bakustra's insipid article, it states clearly that

Despite advocates' concerns, it's unclear whether consumers who go through arbitration are any more likely to get a judgment against them than those who go to court. The National Arbitration Forum (NAF), one of the nation's largest private arbitration firms, is commonly used by creditors and secondary debt buyers. A Monitor analysis of the last year of available data from NAF found that arbitrators awarded in favor of creditors and debt buyers in more than 96 percent of the cases. () Such results may be similar to outcomes in court.

Stop. Think.

What are the limits on that? There has to be a limit: I cannot be bound by the corporation's contract to commit a crime, for one.

But beyond that, there should be other limits.

The corporation shouldn't use contracts to force consumers to forgo reasonable protections against corporate malpractice.

Even if it provides an alternative dispute mechanism that is recognized by every single state government as a valid and even an encouraged alternative to this?

If they refuse to render services, they cannot expect payment.

Duh. That's called breach of contract. It gives the other party a right of rescission.

The customer has a right to not have the terms of service altered arbitrarily in ways that make the product less useful (but more profitable) after the fact, by a supplier who's exploiting the fact that their product is now a sunk cost for their customer base.

Not if they sign that right away, under the contract. No state has ruled that such modification clauses are unconscionable, provided that the other party offer a costless way out for the other party.

The customer has a right to some reasonable definition of fair use- there have to be limits on the level of copyright and trademarking a corporation can enforce via user licensing agreements.

What are you even talking about? This has nothing to do with contractual rights either under this contract or any other, because fair use is not a contractual right or obligation.

For all these reasons and more, it is important that consumers be able to sue when they are harmed financially or physically by a corporation's actions.

Why is it important that they be able to sue, rather than arbitrate? It's not as if no legal remedy is being offered for people with legitimate grievances. In fact, they get a process that is simpler, takes less time, that studies show has roughly the same success rate for consumers with higher average payouts, and that is viewed by every single state and the federal government as being a worthy and perfectly legitimate alternative to litigation. So why is it so unsavory that a contract determine that you can use one and not the other? Would you object if the contract required people to litigate, rather than arbitrate?

Most importantly, contracts are not holy. They are deals we have in society to formalize economic relationships; if a certain form of economic relationship is deemed bad for society, we have every reason to adjust our contract law accordingly. Contracts are a tool, not a purpose, and as such the list of what kind of terms can be put into a contract is, and must be, limited.

True, but WHY SHOULD THIS PARTICULAR TYPE OF TERM BE UNCONSCIONABLE? We have a strong public policy goal of increasing use of arbitration in lieu of litigation--this motive has been recognized by Congress, the Supreme Court, and state legislatures across the country. WHY is it unconscionable to require arbitration instead of litigation, in view of this policy objective?

Ahem.

You ignored that point.

Arbitration- and I hadn't thought of this- does not set legally binding precedents.

Precedent plays an important role in law, because it builds up a body of judgments we can look back on- that set standards we can use in future cases to decide what does and does not cross the line into criminal activity. We can shape future laws (and contracts) in light of precedents set by previous cases, and when judicial precedent establishes a right or a restraint on the law (or contracts), that limit stays in place. It is not arbitrary or capricious, and there exist higher courts that can slap down bad decisions by a lower one.

This is available with arbitrators, too--you can appeal arbitration decisions in most states that I'm familiar with. It's also not as if arbitration decisions and rulings are hidden from the public, so it's not as if they're concealed from lawmakers who might wish to create or modify statutes in lieu of the outcomes in such instances. Again, I fail to see how this is corporatist.

Whereas a decision made by an arbitrator is, well, arbitrary. They can judge for a customer one day, then turn around and judge for a corporation under the same conditions the next day. Nothing is set in stone, it's all up to the arbitrators, and the arbitrators are chosen and paid by the corporations. They can change the rules that govern how they make their judgments at will, to serve whatever end they see fit.

You obviously have absolutely no idea how arbitration works. Arbitrators are supposed to apply the same law that would govern courts (i.e., usually state law but sometimes federal law when there's a federal claim).

And there is no higher court of appeals, the arbitrator's decision is binding unless you, personally, wish to challenge the ruling in a court of law and can find grounds to do so. Good luck doing so out of your own resources- if for example the arbitrator is taking bribes, you're probably never going to find out.

This is exactly the same as in court. Good luck finding resources to appeal a bad decision in a trial court by yourself. And if the judge is taking bribes, how would you ever find out?

This is a bad way to make law, or a substitute for law. Imagine what would happen if we applied the same standard to corruption trials- if an official accused of accepting bribes could submit the matter for "arbitration" to a judge he chooses and who is paid out of the politician's pocket? How much harder would that make it to get a judgment against the corrupt official?

I don't think it would, but arbitration is not available for criminal cases because the constitutional right to a trial by judge and jury has been read to exclude the possibility of criminal arbitrators. In civil cases, though, there is a strong public policy incentive (recognized by every state and federal legislative body and many, many courts) favoring arbitration in lieu of litigation. It is seen as a fair and reasonable alternative to the process.

[Bakustra]

Jesus Christ, you fucking illiterate, breaking sentences into fragments is a horrific butchery of syntax.

Yes, because clearly the customers will have sufficient experience to select a decent arbitrator, and because AT&T is the sole corporation making use of arbitration clauses!

And their attorneys don't have experience with this?

Why would they necessarily retain an attorney, seeing as they're unfamiliar with arbitration? Why would the attorney they hire necessarily have experience with arbitration? Why do you pretend that this doesn't apply to more companies than AT&T?

I don't know. You tell me how a company can force disgruntled customers to choose between an unfamiliar process of arbitration, (which rarely decides in favor of the customer) or accepting an agreed cash settlement as a panacea, especially given the court case that we're discussing here.

Because the cash settlements of claims are a perfectly reasonable way of resolving disputes. What the fuck is unreasonable about this? Especially because then the customer has the opportunity to fight the case, anyway, and if they win they win a massive premium over what the arbitrator chooses to award.

As for your article, it does not support your claims at all. It's an article railing against a particular form of arbitration that wasn't at issue in this case. Further, whether or not arbitrators often rule in favor of the consumer is not relevant. The issue is whether, on average, they offer greater or lower payouts than courts (because so many customer disputes are frivolous and only sometimes should the customer win even in the cases with some merit). And arbitrators do. So consumers who do sign mandatory arbitration contracts like the one that AT&T uses get: higher average payouts, guaranteed costs (even if they lose), a substantial premium if they win. How is this a bad thing?

Ossus, you're a fucking idiot. This is not a frivolous insult. You have truly revealed yourself to be an idiot. I'll give you a hint- if you have a choice between a 4% chance with better payouts and a, say, 10% chance with with slightly lower payouts, then the 10% chance is better every single time, because it is more consistent in its payouts. You're significantly more gullible than the typical gambler- quite the feat of stupidity.

You're talking solely about AT&T- but this ruling applies to more than just a single company, including the credit-card companies mentioned specifically in the article, and including ones that don't offer premiums or other benefits- and in lieu of any threat from litigation, they have no real incentive to offer them. The reasons the article gives also don't suddenly disappear when it comes to other companies, despite your Stockholm Syndrome towards the predator classes.

and generally marginalize complaints even if the arbitration is fair,

How does one minimize a complaint when there's a $7500 premium for bringing a valid complaint that the company doesn't offer to settle, in full, prior to the decision?

Well, see, I used marginalize rather than minimize for a reason, because-

Way to address the point. How does it marginalize a complaint to pay a massive premium, and costs (even if the consumer loses), with a higher average consumer payout?

You answered this yourself, you idiot- it reduces any impact that complaints may have on a legal level by preventing any precedent from being set! What are we even arguing about- you admit that this is corporatist as fuck, though you probably don't consider it a negative for the laboring classes that any complaints they have about business practices can just be ignored for cash now.

No, I don't see how that's "corporatist as fuck." If you give people a substantial incentive to arbitrate against you, that's not unfair to the other party.[/quote]

Ossus, the point was that you would read those in sequence, rather than just jumping the gate in your slavering hurry to respond and defend your corporate masters. It's corporatist because it insulates companies from any consequences as long as they can make people sign contracts. That's the point of avoiding precedent, unless you have some other, contemptuous reason why it's so beneficial.

Can't overlook this now- so if I provided you with a boilerplate contract that had buried in it provisions for you to serve as my personal sexual slave and live-in maid in exchange for a credit card renewal, and you signed it, would you simply think "well, I guess I have to abide by the terms of this contract" and drop trou? It turns out that some people might view certain practices, like barring individuals from legal recourse, as being inherently exploitative and unjust, and therefore feel that such contractual terms ought to be automatically invalid.

Oh I see, so mandating ahead of time that if there is a dispute then it should be handled by an arbitrator of your choosing, to use a process which is seen by every state government AND the federal government as being a perfectly legitimate alternative to litigation, with costs to be paid by the other party and a massive premium if you win is equivalent to forcing you into sexual slavery.

Ooh, sarky. Guess it's time for taserplay tonight! See, you're dismissing that people might actually consider this inherently unjust. Please, explain why the just outcome involves restricting the rights of consumers in response to corporations. Because they can win the lottery, metaphorically speaking?

Ossus, you're a corporatist because you're contemptuous of consumers, because you dismiss anything critical of the predator classes (see, I can use rhetoric too!), and because you're a legalist.

[Master of Ossus]

Why would they necessarily retain an attorney, seeing as they're unfamiliar with arbitration? Why would the attorney they hire necessarily have experience with arbitration? Why do you pretend that this doesn't apply to more companies than AT&T?

These precise criticisms similarly apply to litigation, where a substantial fraction of cases are filed pro se.

Ossus, you're a fucking idiot. This is not a frivolous insult. You have truly revealed yourself to be an idiot. I'll give you a hint- if you have a choice between a 4% chance with better payouts and a, say, 10% chance with with slightly lower payouts, then the 10% chance is better every single time, because it is more consistent in its payouts. You're significantly more gullible than the typical gambler- quite the feat of stupidity.

Why is this a bad thing? You are talking about this as if I cannot make an identical statement about litigation in court, but arbitration takes up substantially fewer public resources in the interim.

You're talking solely about AT&T- but this ruling applies to more than just a single company, including the credit-card companies mentioned specifically in the article, and including ones that don't offer premiums or other benefits- and in lieu of any threat from litigation, they have no real incentive to offer them. The reasons the article gives also don't suddenly disappear when it comes to other companies, despite your Stockholm Syndrome towards the predator classes.

And? What incentive does a company have to offer a settlement during litigation? The motives are equivalent, except in cases like AT&T which offer substantial arbitration premiums vs. litigation through the courts.

Ossus, the point was that you would read those in sequence, rather than just jumping the gate in your slavering hurry to respond and defend your corporate masters. It's corporatist because it insulates companies from any consequences as long as they can make people sign contracts. That's the point of avoiding precedent, unless you have some other, contemptuous reason why it's so beneficial.

Because there are significant public policy reasons supporting arbitration over litigation. You have failed utterly to address this point, even though every state government and the federal government have recognized these benefits. The public as a whole is better served by arbitration. Moreover, it doesn't "insulate companies from any consequences" to arbitrate. They still have to pay damages if they're found to have been in the wrong, just as if they had gone to court. The major benefits are that it reduces costs (to both the companies and the public) which are inherent to litigation rather than arbitration, which is less expensive. That's not corporatist--it improves the net efficiency of our system for resolving disputes.

Ooh, sarky. Guess it's time for taserplay tonight! See, you're dismissing that people might actually consider this inherently unjust.

Yes I am. Every single state government, and the federal government, agree that arbitration is a perfectly acceptable and valid alternative to litigation. It's not "sarky" [sic] to point that out. Your analogy is completely and utterly devoid of merit, and forms the entire basis of your argument. Rather than bother to defend your view that arbitration clauses are inherently unconscionable (an analogy you bungle anyway since you can't distinguish voidness due to criminality, public policy, and unconscionability), you have simply repeated that some people (namely you) consider it to be indefensible. But WHY is it so unconscionable to require binding arbitration instead of litigation? You haven't even begun to explain this perspective, even though it the two are qualitatively similar and quantitatively (in terms of returns for the consumer) indistinguishable from litigation that you champion. In fact, in some demonstrable cases, like that of AT&T, litigation is is demonstrably worse for consumers, and in all cases it is worse for the public to litigate rather than arbitrate because the courts are overloaded relative to the arbitration system and even in equivalent conditions would be significantly more expensive.

Please, explain why the just outcome involves restricting the rights of consumers in response to corporations.

It's at most a de minimis restriction on their rights. They still have all the legal remedies they have in court, but with much higher expected payouts. Indeed, courts have long agreed that arbitration is a valid alternative to the courts. The only real differences are procedural and every single state and the Federal government have recognized arbitration as a valid alternative to litigation. Moreover, this is a contractual relationship--consumers are choosing to surrender these rights in exchange for the benefits of the contract. In order to show that this should be unenforceable, you pretty much have to resort to "void due to public policy" (which it's not--public policy supports arbitration), unconscionability, and criminality. There might be some other defenses, but your efforts to show that one of these doctrines should apply, thus far, have all boiled down to "some people don't like it."

Because they can win the lottery, metaphorically speaking?

Ossus, you're a corporatist because you're contemptuous of consumers, because you dismiss anything critical of the predator classes (see, I can use rhetoric too!), and because you're a legalist.

What the fuck does this even mean? How am I "contemptuous of consumers?" How have I "dismiss[ed] anything critical of the predator classes" (even though your own fucking article concludes that it can find no difference in the success rate between arbitration and court decisions--critics of arbitration rely entirely on speculation rather than empirical evidence to support their claims)? How am I a legalist? Because I argue that public policy, as recognized by every state and Congress, have universally recognized arbitration as a valid alternative to the court system?

[Bakustra]

Why would they necessarily retain an attorney, seeing as they're unfamiliar with arbitration? Why would the attorney they hire necessarily have experience with arbitration? Why do you pretend that this doesn't apply to more companies than AT&T?

These precise criticisms similarly apply to litigation, where a substantial fraction of cases are filed pro se.

Except that judges are required to have been trained in legal principles and worked legally, and there is no such requirement for arbitrators. Except that many class-action cases are put together by lawyers who then attract people to the case to swell the ranks of the class involved. You know, these little objections.

Ossus, you're a fucking idiot. This is not a frivolous insult. You have truly revealed yourself to be an idiot. I'll give you a hint- if you have a choice between a 4% chance with better payouts and a, say, 10% chance with with slightly lower payouts, then the 10% chance is better every single time, because it is more consistent in its payouts. You're significantly more gullible than the typical gambler- quite the feat of stupidity.

Why is this a bad thing? You are talking about this as if I cannot make an identical statement about litigation in court, but arbitration takes up substantially fewer public resources in the interim.

So arbitration has lower payouts but a higher chance of success for the consumer while simultaneously having higher payouts? You're not being coherent here, I guess it's true that corporatism makes you dumber.

You're talking solely about AT&T- but this ruling applies to more than just a single company, including the credit-card companies mentioned specifically in the article, and including ones that don't offer premiums or other benefits- and in lieu of any threat from litigation, they have no real incentive to offer them. The reasons the article gives also don't suddenly disappear when it comes to other companies, despite your Stockholm Syndrome towards the predator classes.

And? What incentive does a company have to offer a settlement during litigation? The motives are equivalent, except in cases like AT&T which offer substantial arbitration premiums vs. litigation through the courts.

I'm talking about the premiums, you ignorant slut! The point is that those are designed to try and lure people into arbitration, but when arbitration is the only recourse, then the incentives for offering them disappear.

Ossus, the point was that you would read those in sequence, rather than just jumping the gate in your slavering hurry to respond and defend your corporate masters. It's corporatist because it insulates companies from any consequences as long as they can make people sign contracts. That's the point of avoiding precedent, unless you have some other, contemptuous reason why it's so beneficial.

Because there are significant public policy reasons supporting arbitration over litigation. You have failed utterly to address this point, even though every state government and the federal government have recognized these benefits. The public as a whole is better served by arbitration. Moreover, it doesn't "insulate companies from any consequences" to arbitrate. They still have to pay damages if they're found to have been in the wrong, just as if they had gone to court. The major benefits are that it reduces costs (to both the companies and the public) which are inherent to litigation rather than arbitration, which is less expensive. That's not corporatist--it improves the net efficiency of our system for resolving disputes.

How is the public as a whole served by preventing people from banding together with common complaints in class-action suits? Are all such suits obviously frivolous, (seeing as they apparently only involve dumb poors electrocuting or burning themselves, unlike the beautiful people with millions of dollars in assets) such that they should not be placed in the courts ever? Why don't we send all our criminal cases to arbitration to save expenses, then, if this is so desperate a need?

It insulates companies from any long-term precedent involving the outcome of a case, such as a particular method being found exploitative or wrong. See the Pinto, where Ford decided that paying settlements was easier than a recall, and got their asses rightly beaten in by class-action suits. No auto company will do that again if it can help it, because the precedent was set that doing this would get you ripped apart. Now, in this brave new America, companies can just settle it through binding arbitration that likely favors them by default or through settlements, and that precedent, formal or informal, will not be set under these conditions.

Ooh, sarky. Guess it's time for taserplay tonight! See, you're dismissing that people might actually consider this inherently unjust.

Yes I am. Every single state government, and the federal government, agree that arbitration is a perfectly acceptable and valid alternative to litigation. It's not "sarky" [sic] to point that out. Your analogy is completely and utterly devoid of merit, and forms the entire basis of your argument. WHY is it so unconscionable to require binding arbitration? You haven't even begun to explain this perspective, even though it is qualitatively similar and quantitatively indistinguishable from litigation that you champion.[/quote]

It's unconscionable because of concerns about bias within the system, because arbitrators are not beholden to public interests inherently the way judges are supposed to be, because it removes the ability of collective action for consumers. More importantly, why should I necessarily agree with a bunch of crooks counting the cash from the last lobbyist, aka our legislative bodies? Because they know better, according to the obsolete theory of political elites?

Please, explain why the just outcome involves restricting the rights of consumers in response to corporations.

It's at most a de minimis restriction on their rights (because they still have all the legal remedies they have in court, but with much higher expected payouts).

They can't bind together in class actions, you fucker. You're moving things from class-action to litigation, because you don't want to acknowledge any of the benefits of it. Presumably, this is because you're some form of Libertarian scum who can't comprehend collective action.

Because they can win the lottery, metaphorically speaking?

Ossus, you're a corporatist because you're contemptuous of consumers, because you dismiss anything critical of the predator classes (see, I can use rhetoric too!), and because you're a legalist.

What the fuck does this even mean? How am I "contemptuous of consumers?" How have I "dismiss[ed] anything critical of the predator classes" (even though your own fucking article concludes that it can find no difference in the success rate between arbitration and court decisions--critics of arbitration rely entirely on speculation rather than empirical evidence to support their claims)? How am I a legalist? Because I argue that public policy, as recognized by every state and Congress, have universally recognized arbitration as a valid alternative to the court system?

Yes, you're right! That makes you a legalist because you feel that once something is recognized by a nigh-universally corrupt set of corporate prostitutes, then by golly all complaints are invalid and insipid. Similarly, you characterize complaints as insipid, ignore the actual empirical evidence by complaining that they don't have all of it, and frame your objection to litigation in prejudicial ways. Gee, I don't know why I say these things when they are clearly outside of your ability to comprehend.

You claim to have studies showing courts and arbitration to be equally fair- then provide it! Granted, your history with data has generally been pathetic, so I expect it to turn against you somehow, but no matter.

[Master of Ossus]

Except that judges are required to have been trained in legal principles and worked legally, and there is no such requirement for arbitrators. Except that many class-action cases are put together by lawyers who then attract people to the case to swell the ranks of the class involved. You know, these little objections.

Wrong. Judges are not necessarily trained in the law, nor have they worked legally before. Many states have elected judges.

On the second count, National Academy of Arbitrators requires arbitrators to have substantial experience, recommending at least 60 published opinions (which is typical for a judge who's been around for ~3 years or so). As for the other arbitration associations, they typically also require either training or experience or both.

So arbitration has lower payouts but a higher chance of success for the consumer while simultaneously having higher payouts? You're not being coherent here, I guess it's true that corporatism makes you dumber.

How fucking stupid are you? If the probability of a payout is the same, but the magnitude of the probable payout is higher (which it is), then how is this a bad deal for the consumer?

I'm talking about the premiums, you ignorant slut! The point is that those are designed to try and lure people into arbitration, but when arbitration is the only recourse, then the incentives for offering them disappear.

Apparently not. AT&T's contract barred litigation, but still offered massive premiums and all of the other benefits of arbitration.

Don't you just hate reality, Bakustra?

How is the public as a whole served by preventing people from banding together with common complaints in class-action suits? Are all such suits obviously frivolous, (seeing as they apparently only involve dumb poors electrocuting or burning themselves, unlike the beautiful people with millions of dollars in assets) such that they should not be placed in the courts ever?

1. Class action lawsuits are unusually costly to the public.
2. This particular case is a good example of a laughably frivolous claim brought by scumbags trying to get rich. Seriously, how sympathetic are you towards the Concepcions, here? How the fuck do you sue someone for complying with state law while keeping a straight face?

Why don't we send all our criminal cases to arbitration to save expenses, then, if this is so desperate a need?

Because we have this whole constitution thing that says that we can't do that.

There are advantages and disadvantages of both courts and arbitration, but one has been seriously under-utilized historically (in the unanimous judgment of state legislatures).

It insulates companies from any long-term precedent involving the outcome of a case, such as a particular method being found exploitative or wrong. See the Pinto, where Ford decided that paying settlements was easier than a recall, and got their asses rightly beaten in by class-action suits. No auto company will do that again if it can help it, because the precedent was set that doing this would get you ripped apart. Now, in this brave new America, companies can just settle it through binding arbitration that likely favors them by default or through settlements, and that precedent, formal or informal, will not be set under these conditions.

You idiot, that wasn't a class action lawsuit. Grimshaw v. Ford Motor Co. was an individual action. No class action was involved (did you get confused by the discussion of how the verdict created two classes of plaintiffs who were awarded differently?) In fact, in most states personal injury, wrongful death, and similar suits are by definition not class action.

Even if it had been a class action, what makes you think that this discovery wouldn't have happened with individual suits? Do you think that people don't have resources to file individual lawsuits stemming from the wrongful deaths of their loved ones in absence of classes of plaintiffs?

Also, arbitration is not a settlement. I don't understand why you're under this impression.

Finally, why is it essential that binding precedents be available to vindicating individual rights? At most, what you're implicating is some sort of social issue, but that has nothing to do with vindicating any individual plaintiff's rights--obviously the benefits of binding precedents accrue only to society.

It's unconscionable because of concerns about bias within the system,

Which you haven't showed empirically at all, and in fact the weight of empirical evidence is against you.

because arbitrators are not beholden to public interests inherently the way judges are supposed to be,

Yes, they are. Arbitrators are sworn to neutrality as between the parties, among other things, and all the contracts with which I am familiar require neutrality on the part of the arbitrator for their rulings to be valid.

because it removes the ability of collective action for consumers.

Didn't realize that was such a fundamental right that you can't even contract to give that up with respect to a tiny fraction of potential cases that you as a consumer might engage in. Do explain more.

More importantly, why should I necessarily agree with a bunch of crooks counting the cash from the last lobbyist, aka our legislative bodies? Because they know better, according to the obsolete theory of political elites?

You don't have to agree with them, but they represent a pretty powerful group of people who are beholden to the public interest and who have investigated this and who have uniformly come to the conclusion that encouraging arbitration is in the public's benefit.

They can't bind together in class actions, you fucker. You're moving things from class-action to litigation, because you don't want to acknowledge any of the benefits of it. Presumably, this is because you're some form of Libertarian scum who can't comprehend collective action.

Why don’t you just claim that filing class action lawsuits is some fundamental human right?

The point of class action suits isn’t litigation for litigation’s sake (people like you often lose sight of this). The point is to provide a legal forum in which small claims can be heard by people claiming similar or identical injuries. But here’s the thing: AT&T’s arbitration policy does exactly that, but it accomplishes it better. It still gives small claimants the ability to have their claims heard (at even lower cost to them—namely zero), and it gives attorneys very powerful incentives to represent these people (double attorney’s fees, substantial bonuses for successful claimants). Why is this so unacceptable? And particularly given cases like the plaintiffs in this case, who are obviously scumbags—now they can’t claim to represent millions of people when they file frivolous lawsuits.

You portray the ability to file a class action suit as some sort of fundamental feature of a justice system, but it’s actually been granted to solve a very specific problem that may well have other solutions, as well. AT&T has presented one, and you react to that possibility with a scree of histrionics rather than any substantive objection.

I thought you had slammed me as a "legalist," even while demanding a particular type of procedural right, rather than critically examining the underpinning substantive issue that that procedure was meant to preserve and considering whether it could be adequately addressed by other procedures.

Literally your only claim so far has been that some people don’t like it, therefore it must be wrong.

Yes, you're right! That makes you a legalist because you feel that once something is recognized by a nigh-universally corrupt set of corporate prostitutes, then by golly all complaints are invalid and insipid. Similarly, you characterize complaints as insipid, ignore the actual empirical evidence by complaining that they don't have all of it, and frame your objection to litigation in prejudicial ways. Gee, I don't know why I say these things when they are clearly outside of your ability to comprehend.

You claim to have studies showing courts and arbitration to be equally fair- then provide it! Granted, your history with data has generally been pathetic, so I expect it to turn against you somehow, but no matter.

So you post an article that states that arbitrators offer exactly the same odds of winning as a court, and then demand that I provide data supporting my claim that arbitrators are non-biased relative to the court system? Brilliant.

And, seriously, what empirical evidence have you presented that you think I have ignored? The ONLY link you provided was to an article that discussed a study that concluded that there was no difference--in clear contradiction of your central premise that it would find one. A powerful case could be made that YOU are the one who is ignoring the evidence that you yourself posted.

As for your demand for studies, how about this one, this one, this one (dealing especially with punitive damages--where you'd think that any anti-consumer bias would be especially great), this one, this one (which specifically refutes your bullshit about how unfair arbitration is to unsophisticated parties by showing it is procedurally MORE fair than the court system), this one, and this one? Satisfied? Or did I have you at "your own fucking article says you're full of shit?"

As for public benefits of arbitration, this paper summarizes quite a bit of research on the subject, and states that while some effects of arbitration are overrated, others do exist.

The rest of your rambling, it can uniformly be characterized as being a case of the pot and the kettle.

For example: I argue that claims are stupid and insipid (when they revolve around suing a corporation for complying with a California statute), you claim that being "corporatism makes you dumber."

I frame my case against litigation in "prejudicial ways" (whatever the fuck that means and as if anything I said isn't accurate). Your case for litigation revolved around analogizing a mutual agreement to disallow class action suits by granting an alternative dispute mechanism as akin to sexual slavery.

[Bakustra]

I'm looking at your studies. The first one has no live links to the actual study, and this little tidbit:

Update: We just heard from Paul Bland, a staff lawyer at Public Justice, a public interest law firm, who believes the Northwestern study should be taken with a grain of salt.

“I think it’s misleading to characterize consumer arbitrations generally by looking at a single [arbitration] provider,” he says. “I see companies shopping for the arbitration firms that will rule for them the most often.”

Wow. You lead off with that? Amazing. Next is a blog associated with the Cato Institute that specifically advocates about how arbitration is pro-consumer and provides only assumptions, and a study that found that the majority of cases in small-claims court in the District of Columbia led to default due to no-shows, and the assertion based on a commenter on another blog that this clearly must be the case for the study you whined about. Three is a subset of arbitrations, which you whined about earlier, though it at least supports that securities arbitration may be fair, though it doesn't appear to increase payouts. Hypocrisy so soon?

Four uses shoddy statistics by declaring that all settlements are automatically in favor of the consumer. Its vaunted claims reduce to closer to 50-50 when considering arbitration decisions, and they only use the NAF, which does not guarantee a truly random sample.

Five links to page 187 of a 54-page pdf. Six and seven are behind paywalls.

Your final study specifically refers to arbitration as decreasing the chance of cases requiring litigation- but it does not refer to banning a person's ability to litigate, but rather medical malpractice cases in Nevada that required pretrial arbitration by screening panels. These panels also were comprised of experts chosen for medical expertise. It also suggests that arbitration did not significantly change the payouts involved, or anything but the percentage of cases that went to court.

Okay, that doesn't sound so bad. But that's significantly different from what you were evangelizing, and your ability to provide data is as bad as ever. Do you have anything else? I mean, apart from whining that since this one case was without merit, clearly all of them must be?

EDIT: Somehow left out number four.

[Master of Ossus]

I'm looking at your studies. The first one has no live links to the actual study, and this little tidbit:

Update: We just heard from Paul Bland, a staff lawyer at Public Justice, a public interest law firm, who believes the Northwestern study should be taken with a grain of salt.

“I think it’s misleading to characterize consumer arbitrations generally by looking at a single [arbitration] provider,” he says. “I see companies shopping for the arbitration firms that will rule for them the most often.”

Wow. You lead off with that? Amazing.

Yes. Unlike you, I don't have to carefully craft and tailor the list of my sources to reveal your idiocy with empirical evidence. Even someone whose job it is to deride the arbitration process (not "whose job sorta depends on it"--his entire job is to badmouth arbitration) concedes that the study indicates that one of the largest arbitration groups in the world is fair and unbiased towards his clients.

Also note that this is precisely the same group as was discussed in your article. Surprise, surprise--it has the same average payout and the same rate of consumer success. WHERE IS THE BIAS THAT YOU PREMISED YOUR CLAIMS UPON? Why is this one particular arbitrator immune to it? How did it even get to be so large and powerful given that it has no bias, when your arguments suggest that this would be impossible?

Next is a blog associated with the Cato Institute that specifically advocates about how arbitration is pro-consumer and provides only assumptions, and a study that found that the majority of cases in small-claims court in the District of Columbia led to default due to no-shows, and the assertion based on a commenter on another blog that this clearly must be the case for the study you whined about.

What case study did I whine about? Moreover, I like how you make zero effort to refute the central point, just as you made zero effort to explain why the ability to engage in class action litigation is so fundamental that it cannot possibly be contracted away, and then compared a state in which it was negotiated away to sexual slavery.

Three is a subset of arbitrations, which you whined about earlier, though it at least supports that securities arbitration may be fair, though it doesn't appear to increase payouts. Hypocrisy so soon?

Hypocrisy? You have a lot of balls, I'll give you that.

On a logical level, this is devastating to your central claims. If arbitrators were biased due to some sort of capture mechanism, then securities is where they would be most biased. If they were biased against small-players who were unfamiliar with the system, then securities is where they would be most biased. So in other words, in what you would consider to be the absolute heart of darkness within the arbitration system, empirical studies demonstrate that you are utterly wrong.

You have proposed absolutely no mechanism by which securities claims would NOT be subject to the biases that constitute the entire basis for your claims (aside from your incessant sniveling that "some people don't like it, therefore it's bad"). Similarly, you proposed NO mechanism for how a particularly large and frequently-used arbitration group HAS NO BIAS compared to the courts, even though you predicted that it would and you predicted that it would be particularly strong amongst large and established players who grew to that size by (according to you) systematically favoring businesses. But we see no difference. HOW DO YOU EXPLAIN THIS?

Four uses shoddy statistics by declaring that all settlements are automatically in favor of the consumer.

Explain how the statistics are shoddy. You cannot simply declare them to be so.

Its vaunted claims reduce to closer to 50-50 when considering arbitration decisions, and they only use the NAF, which does not guarantee a truly random sample.

It's NOT a "truly random sample," you idiot. It's a REPRESENTATIVE sample. Where the fuck did you learn about statistics?

Five links to page 187 of a 54-page pdf.

You DO realize how legal journals are paginated, don't you?

And how the fuck did this prevent you from evaluating claims refuting your earlier arguments from scrolling down to the actual article after you downloaded the PDF? It's clear that you are willing to put ZERO effort into researching your posts, even after I took the time to do your research for you.

Six and seven are behind paywalls.

Ah. Is this where you rail about how you have no resources to get access to academic journals that utterly annihilate your arguments, just as those poor, poor consumers have no resources with which to litigate their claims... or arbitrate their claims when someone else pays their costs... I forget which is which. Even the abstracts should be more than adequate as a basis for the claims that I have made about these studies.

Your final study specifically refers to arbitration as decreasing the chance of cases requiring litigation- but it does not refer to banning a person's ability to litigate, but rather medical malpractice cases in Nevada that required pretrial arbitration by screening panels. These panels also were comprised of experts chosen for medical expertise. It also suggests that arbitration did not significantly change the payouts involved, or anything but the percentage of cases that went to court.

Okay, that doesn't sound so bad. But that's significantly different from what you were evangelizing, and your ability to provide data is as bad as ever. Do you have anything else? I mean, apart from whining that since this one case was without merit, clearly all of them must be?

Correct. So arbitration, in those cases, was 1) fair (in that it did not alter payouts or settlements), and 2) significantly reduced the costs to the public of the legal system. How did I introduce that study?

Oh, yeah.

As for public benefits of arbitration, this paper summarizes quite a bit of research on the subject, and states that while some effects of arbitration are overrated, others do exist.

In other words, the study did exactly what I said it would do. It constitutes powerful evidence that there are public benefits to encouraging arbitration in lieu of litigation. It does this without significantly affecting the payouts that your precious little guys receive.

This perfectly explains your argument that it's absolutely unconscionable to allow people to negotiate away their ability to engage in class action litigation (which we've established is harmful to the public), and instead to use an arbitration process which by all evidence does not change the payouts that the parties receive at all (except in the case of arbitration like AT&T's, where it would significantly increase payouts). Yes. I can easily understand. Oh, wait, it does nothing of the sort. In fact, it completely crushes your claims.

As for your insistence that I am "as bad at providing data as ever," the sheer hypocrisy of this statement is off the charts, even for you.

You see, despite multiple requests that you do so, you have not attempted to provide your evidence, outside of an article that refers to a study that says in no uncertain terms that you're wrong.

It's clear that you either have no interest in defending or advancing your views or no ability to do so.

Therefore, for the benefit of spectators to this discussion allow me to reiterate my central points:

1. Even while decrying me as a "legalist," Bakustra insists that it's unconscionable to deny someone a procedural right by substituting another procedure which by all accounts seems to produce equivalent results (or, in some cases, results which are better for the person). In fact, Bakustra seems to argue that it is not possible to come up with another system for vindicating small claims other than class action. Had he examined AT&T's policy (which he doesn't, because it "only applies to one company," as if that eliminates it as a possible alternative to class action litigation), he would see that it offers similar characteristics by providing attorneys with powerful interests to represent small claims and by offering injured parties themselves massive benefits for bringing meritorious claims (something which, actually, the class action system fails miserably at). At the same time, vis-a-vis class action, it discourages ridiculous and frivolous claims like the one that sparked this particular lawsuit.

2. Even while demanding voluminous empirical evidence from me, Bakustra rested his case on a single article which referred to a single study that refutes his claims that arbitrators are systematically biased against consumers and in favor of business in class action arbitration.

3. Bakustra then practices some artful dodging (including the tactic of ignoring a 54-page article describing in detail a great number of studies done in the field solely because it is not paginated beginning with 1), but concedes that:
a. At least two very large arbitration groups are "fair" in that they do not alter the expected payouts of the court system.
b. That ALL arbitration groups are "fair" with respect to securities claims--an area that his proposed mechanisms for bias suggests would be particularly susceptible to bias and which are arbitrated by a wide pool of large arbitration groups.
c. Arbitration in at least one other major area (medical malpractice) does not alter the court results while simultaneously reducing the burden on courts; and thus that arbitration offers public benefits as well.
And these are his CONCESSIONS.

4. In fact, rather than responding to any of my criticisms of his reasoning at all, Bakustra focused his entire post on individually attacking the articles that I posted for not being "magic bullets" that single-handedly destroy any possibility of argument in favor of litigation. But here's the thing: a brick is not a wall. I posted multiple articles precisely because none of them individually and in absence of the others refuted every one of his claims. Collectively, these demonstrate that:
a. Arbitration is fair in that it does not produce different results from court cases, except by express agreement as in the case of AT&T, in which it systematically favors consumers. This is true both in cross-sectional studies examining effectively all major securities arbitrators in an area in which Bakustra's reasoning predicts particularly large biases, and in uni-sectional studies of particularly large arbitrators (where, again, Bakustra would predict relatively large biases) covering all subject areas. Finally, it is true in at least one complicated area (medical malpractice) across an entire state (Nevada) which specifically experimented with arbitration in lieu of litigation and which included every arbitration decision in that state as part of the study.
b. Arbitration offers significant advantages to the public over litigation, reducing costs and decreasing the case load on courts.

In spite of this, Bakustra continues to insist that a negotiated contract substituting individual arbitration for class action is so unconscionable as to be analogous to contracting for sexual slavery.

But if you disagree with him, you're obviously a corporatist moron.

I guess that settles that, then.