Oh, it's even worse than that for companies. The 9th and 10th circuits have both agreed that if the defense refuses to pay for arbitration, plaintiff can go to court. They're no longer barred from suing at that point.
Incidentally, the AAA rules have some useful provisions in consumer disputes. Either party can request to transfer the case to small claims court. At least in California, that's not only cheaper, small claims courts tend to be pro-plaintiff. You get to be heard in person in your own county by a real judge.
I took State Farm to small claims court. They paid to upgrade it to general division at the last possible moment, which significantly increases the logistics and complexity of the case. I think they did it as an intimidation tactic. Corporations are horrible.
They settled the morning of the hearing for exactly as much money as I asked for before I took them to court. They admitted that the attorney alone cost much more than the settlement. Not to mention the court fees they had to pay.
And accordingly, I could give orders to their lawyers and their likelihood of doing what I say is about the same as the percentage of the company that I own.
Why do the policyholders pay for so much TV advertising to get new policyholders? Increase in volume lowers overheads and spreads the risk pool, but surely not to the extent of the TV spending.
It's a matter of feedback, really. It doesn't matter if a government is selected by the people if the government can control the people more effectively than the people can control the government.
If the company holds very infrequent general meetings and the owners can't schedule extra ones, then the managers are going to rule, irrespective of who "formally" governs the company.
It's like a people's democratic republic: even if the election is fair, the political bureau sets the rules 99% of the time and the congress of deputies only meets once a year - and soon enough the elections end up no longer being fair.
That seems unfairly stacked in favor of the defense. If they refuse to pay for the arbitration, that should be the same as if they just refuse to show up to court, i.e. default judgement in favor of the plaintiff.
So, buried in size 3 font on page 355 of a document included by reference in the 200 page TOS and that can be found at the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying "Beware of the Leopard" -- that one is to have read in full by legal counsel before spending $30/month on internet access?
Right.
I know that courts know about contracts of adhesion, but suggesting that there's anything mutual about them is absolutely grounds for a little prodding.
The arbitration vendors (and lets be clear...they are vendors not a system of justice) could and probably should write this into their rules.
They rely on the appearance of fairness to enable corporations to use their services against consumers/employees. If they aren't careful there is a risk of the courts increasingly observing how tipped the scales of arbitration are.
The jurisprudence, to the limited extent I understand it, relies on the assertion that arbitration is fair. Upholding that believe is in the arbitrators interest.
>(and lets be clear...they are vendors not a system of justice)
This is misleading, neither America nor any other country has a justice system. Justice is often a goal of the legal system but it is not a direct attribute of the system.
Most of Europe, at least, isn't bound to the letter of the law, but rather the spirit of it. I'd assume this makes them much more a justice system than the American version.
To be fair, the "justice system" is a commonly accepted name for the legal system, in the same way that you would call it the "Department of Defense" or the "Department for Health and Social Care."
Arbitration is extremely disruptive. If someone takes you to arbitration, you pay $1k non-refundable, simply because they want to take you to court.
If you do end up in court, it's another $20k just for JAMS fees. Again, non-refundable, doesn't matter if you win or lose.
So if someone is trying to take you to arbitration over less than $20k, it really doesn't matter AT ALL if they are right or not, it makes sense to settle for whatever amount you can convince them to agree to.
You can kill a company with frivolous arbitrations, just by having enough people willing to file one. Doesn't matter if those people have been wronged.
Either way, they end up having to fight on a thousand little battlefields all over the place and likely do not have the interest or ability to fight each and every one. This is the sort of thing that can tie up legal teams for years and drain reserves in no time.
I was involved in a mass-arbitration last year. The NDA bars any details from being released for 2 years but in the meantime, we can say we reached "a resolution, not a settlement" in the dispute.
Settlement is one type of resolution. A settlement is just an agreement for one party to drop claims against the other in exchange for something of value (usually money). Usually there is no admission of anything by any of the parties and the exact terms are confidential.
How is that any worse of a position for the companies than if they had never attempted these nonsensical arbitration clauses in the first place? A reasonable outcome would be summary judgements for the plaintiffs due to the defendants not appearing per their own process.
This is interesting. Are they only allowed to sue to force going to arbitration, or is the situation opened to allow a lawsuit for whatever the original dispute was?
It would be WILD if you could (as the company) not pay to go to arbitration, forcing the plaintiff to take you to court (at their expense?) to force you to pay to go to arbitration.
A company could simply stick its fingers in its ears and yell "I can't hear your legal complaints!" and essentially get out of all responsibility. Thankfully, it sounds like this is not the case.
Typically arbitration clauses have wording that also prohibit class-action cases. It looks like this hasn't been tested, but I guess that would be void too?
Once the company breaches the arbitration clause by refusing to pay for arbitration, it would open the door to class-actions.
However, you would probably need to file your case separately in court and get it combined with other cases to form a new class action, or join or an existing class action, as the breach would only apply on a case-by-case basis.
I don't see how there could be any viable argument toward that equivalence. Class action lawsuits are special in that most of the plaintiffs don't have to lift a finger while a small number of plaintiffs and their lawyers prosecute the case on behalf of everyone who doesn't opt out. Mass arbitration still requires each plaintiff to individually prove their case. Companies cannot write contracts that say you can only sue us if you're one of the lucky few; each and every customer/employee must individually have some avenue of recourse or the contract is going to be ruled unconscionable because the contract is only effectively binding on one party.
When a company says "you can't come after us because we're already facing too many other similar claims", that's called bankruptcy proceedings.
I always wondered about the possibility of a legal automation company that would opt people out of a given class action, wait for the class action outcome, and then file individual claims for everyone who opted out. Much better than receiving a gift card for $2.83 or whatever.
I suppose the court fees would be prohibitive, unless you had a strong case and could make the defendant pay them. The math could work out for the right cases though. Back in the day, I remember a class action lawsuit over Philips CD burners that just resulted in something like a $200 coupon off a new Philips CD burner. Basically a useless piece of paper unless you wanted to give the company another $300, but if that could have been made into cash...
In most countries consumer arbitration is either heavily regulated, or non binding. In EU pre-dispute binding consumer arbitration clauses are considered unfair terms.
The fact arbitration is a standard clause in every contract or terms of service proves it benefits nobody but the business. It's all about making consumers renounce their right to proper legal recourse. Why can corporations make people renounce their rights to begin with? Why even give people rights when every company will put a clause in their contracts that says "oh those are nice but please leave them at the door before doing business with us" ? It makes no sense.
Well, anyone can ask you to renounce certain rights, and you can even agree, and courts can (and for certain rights have) rule that you cannot waive those rights. Even if there's a right that is well known you cannot renounced, you can be asked to renounce it, and you can agree to do so, and still not lose the right.
Arbitration can't completely remove access to the courts -- it can (and does) make it harder to get there. Case law for this sort of thing is always evolving, and so is statutory law. It's entirely possible for the courts to modify arbitration sufficiently to make the playing field more even.
It's because the USian view has come to see rights as axiomatic primitives to be layered on top of rather than context-free qualitative assertions. This is regressive due to complexity-induced contradiction, but here we are. It's similar to how with Turing completeness you can implement a low level interpreter on top of a high level language, eschewing the high level language's fancy constructs.
Part of the popularity is herd mentality. I know arbitration lawyers who find it bizarre - many company’s that would be better served by not using arbitration want it anyway.
The US government should’ve stepped in a long time ago and made arbitration optional for essential services. If I’m opposed to entering an arbitration agreement, what recourse do I have?
The US government had stepped in a long time ago and sided with big business as it almost always does. Abandon any hope that they will make a significant move against so called "free market".
In Canada we had the Douez v. Facebook supreme court case that, from my understanding, made forum selection clauses in consumer contracts unenforceable.
Not a lawyer but I suspect it would depend on the country.
As an example there are clauses written into ToS which don't allow refunds on digital purchases. These work fine in the US but are illegal in countries with stronger consumer protections like Australia. US companies do still have to obey local laws - at least when it comes to the sale of faulty goods.
I would suspect (not a lawyer) that the main issue will be jurisdiction.
As a consumer in the EU, jurisdiction in matters with commercial entities is the consumer’s place of residence. But HN/YC isn’t in the EU, and I don’t think there are any legal agreements b/w the EU and USA that are relevant here. Free trade agreements tend to include such issues, but TTIP’s well-known fate means this is left to the parties to specify in any contract.
Then, there’s a difference b/w HN and YC. HN’s relationship to users is that of a commercial entity to consumers. But YC investing in your startup isn’t. Consumer protections would not apply even if YC were in the EU.
To summarize: yes, the arbitration clause, at least of YC, would apply to the same extend as if you were a US citizen.
Also not a lawyer. To be covered by Germany's consumer protection law, you need show that you are end consumer of a commercial product or service. I don't see how that would apply to YC/HN.
If you could pull that part off, I think you could take YC to court in Germany, and even achieve a favorable judgement. However, I don't see any way how you could enforce the outcome, except if YC has assets in Germany.
I am not a lawyer, but I highly doubt it, if all you've done is create an account. There is no mention of the arbitration clause in the account signup, so you literally can't agree to it during the signup.
It seems like every mundane service these days either has added binding arbitration, or requires it on sign up. Anyone from Pornhub/various adult sites to Blue Apron all want you to waive away your rights.
Even more troubling is binding-arbitration and class-action waivers for employment. They suppress cases of systematic mistreatment and allow issues to be swept under the rug, even more so than they are already.
If you running a "real" business frequently you have to get customers to sign waivers to get insurance.
For instance, if you want to get insurance for a riding academy, they will want you to get all your riders to sign a contract that disclaims all liability, put up a big ugly sign about it, all that.
That's a much different and much narrower instance of giving up one's rights. In the case of the riding academy, the consumer can still go to court and argue that an injury was caused by negligence on the part of the business and get the waiver invalidated. Taking a company to court over a contract dispute when there's an arbitration clause involved is most likely to get the case dismissed in favor of arbitration. Arbitrators have no real requirement to actually follow any laws, and rarely do they allow any appeal, so you're essentially at the whim of the arbitrator.
The “Legal” link at the bottom of the website points to Y Combinator’s TOS.
> Welcome to the Y Combinator website (including all subdomains, the “Site”)
> This Site provides, among other things... forums for discussions about topics relevant to startups
> THESE TERMS OF USE CONTAIN AN ARBITRATION AGREEMENT, WHICH WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION.
It’s odd that there isn’t any mention of the TOS upon registration. Does this mean they could potentially be non-enforceable?
I highly doubt its enforceable. I can't try to enforce a ToS against you if I never even asked you to agree to it, or even _informed_ you that such a ToS exist.
EDIT: Did some random googling about enforceability of terms of service. In a case discussed here[1] the ToS were deemed unenforceable based upon in part the lack of assent to the terms.
> [A]cceptance need not be express, but where it is not, there must be evidence that the offeree knew or should have known of the terms and understood that acceptance of the benefit would be construed by the offeror as an agreement to be bound. . .That is not the case here. The plaintiffs were never put on inquiry notice of the arbitration provision, and their continued credit-card payments, which were auto-debited from their credit cards, were too passive for any reasonable fact-finder to conclude that they manifested a subjective understanding of the existence of the arbitration and other emailed provisions and an intent to be bound by them in exchange for the continued benefits [membership] offered.
In the HN case I would argue that there is no evidence that anyone creating a HN account knows or can be expected to know that there are ToS related to that account creation that they are agreeing to, as there is no mention of them in the complete registration process.
ianal and all that - but these tos are dubious. They can be ruled unconscionable, not enforceable because they are easy to miss, and being overly favored to tho company.
Ignore the arbitration clauses and talk to your lawyer.
IANAL either but I do know a little about contract law because I was involved in a legal dispute involving contract law [1]. One of the fundamental principles of contract law is that for a contract to be legally binding there has to have been a "meeting of the minds" [2], i.e. the two parties have to actually have agreed to the terms of the contract. Merely publishing terms of service does not constitute a legally binding contract. Think about it: I could put ToS on my site that say, "By using this site you agree to pay me $1M." If I were to try to enforce that I guarantee you I would not prevail.
Binding arbitration clauses in ToS are there primarily to make people think that they can't sue.
Nabla is correct and the prior two commenters are wrong. Although many people think that arbitration clauses are unenforceable, in fact they are completely and totally enforceable under US law in every state. When you take your [service] to court, it will get kicked out immediately and your dispute will be adjudicated by an arbitrator usually chosen by and paid by the [service], and that will be the extent of the justice available to you.
We started off the thread with "these TOS are dubious, they can be ruled unconscionable..."
They aren't dubious, they aren't ruled unconscionable. If you sign up for some service and agree to the terms of service that include arbitration, you're going to arbitration and nothing else. Yes, your click on "I agree to the TOS" is binding on you, no, no one cares that you were closing your eyes or crossing your fingers or whatever. Your use of the service shows your agreement.
You're correct IFF the TOS constitute a valid contract. Contracts can be invalid for a number of reasons, including "one party wasn't made aware they were entering a contract".
>Yes, your click on "I agree to the TOS" is binding on you
There is no such button in this particular case.
>no, no one cares that you were closing your eyes or crossing your fingers or whatever.
No, that is not necessarily true. If I put in my ToS that by using my site you agree to (say) my installing malware on your machine that will allow me to go into your bank account and take as much money as I want, that will (almost certainly) not be enforceable.
I didn't say that arbitration clauses are unenforceable. They are enforceable. In fact, one of the references I cited explicitly spelled that out in painful personal detail. What I said was that merely publishing ToS on your web site does not constitute a binding contract. If you don't have a binding contract, then nothing in the ToS is enforceable.
This is very region/system specific, the US and UK adhere more strictly to what was written than most of continental Europe. In Europe there is more weight on "reasonable" interpretation and consumer protection compared to the literal agreement. That makes things more vague, but the result is also that going to court with the claim "the terms are too unfavorable to me and I was forced to click OK" is accepted by the courts as a reason to ignore the TOS.
So a mandatory arbitration clause can be written here, but you would fail to stop your customer from going to court if they disagree with the arbitration outcome.
Similar for things like excluding warranty, you cannot legally decrease consumer product warranty below 2 years in Europe. You would loose that case, because the courts have ruled that less then 2 years (or less than the reasonably expected economic life of the product if that's longer) is unfavorable to the consumer and thus null.
IAAL and banking on a court voiding a contract provision is tenuous. "adhesion contracts" in the form of website TOS, click-throughs, etc. are upheld by courts.
In Europe, or at least Germany, there are consumer protection initiatives that have standing to sue in such cases. They sometimes take up individuals’ cases, and even take companies to court preemptively for onerous ToS. Mobile phone companies have been hit by such lawsuits quite a few times. Similarly, there’s an environmental group that has forced several large German cities to implement (partial) bans of diesel cars based on EU pollution limits being repeatedly being broken.
The concept of class-action lawsuits isn’t as relevant here, and there is no such concept as “punitive damages”. The best you can hope for is a court order granting you whatever Igor is in dispute plus any actual damages.
Lawyers’ fees and court costs are also awarded to the winner by default, with a sliding scale for such fees based on the value in dispute. You can sometimes find a lawyer who will take your case if they are optimistic as to your chances, but of the cases I know, this mostly happens when the lawyer also has some ideological interest in it (say privacy or labor law).
There is insurance you can buy that will cover legal costs, but you will need to convince them of your chances in any litigation that you want to initiate (as opposed to being sued). There are also a number of non-profits that offer legal services for specific issues, typically in exchange for yearly fees: unions, tenants’ organisation, and even dog owners’ or RC airplane clubs.
This seems like fantastic news -- if class action suits aren't allowed, then technology now makes it easier to file "cookie cutter" arbitration suits at such low cost that it effectively acts like a small class-action suit anyways.
But I'm worried companies will be able to respond in a way that neutralizes it -- tweaking arbitration terms somehow. I hope not, though. It is absolutely necessary that we hold companies accountable for mass bad behavior, no matter if it's with their customers or employees.
In cases where the arbitration clause is already in place, and the arbitrations have been filed, that would likely be difficult to do, as a result of the Alsup ruling.
Where the arbitrations haven't begun yet, there's certainly some scope for attempting to neutralize this, by changing provider or terms. Interestingly, there's a potential conflict-of-interest brewing [1] around whether DoorDash's lawyers were so tightly involved in the writing of the CPR's rules, that the CPR sought their approval before publishing them [2]...
If that is the case, things could start to get quite interesting indeed, particularly for CPR, who are not looking in a particularly good light after discovery in the case.
> The documents in the case were unsealed on Wednesday, revealing that the defendants were so involved in the protocol that CPR would not publish it until DoorDash and its lawyers gave the go ahead, including a sign off on the fee structure by DoorDash’s head of litigation, Gregg Farano. In his written approval of the Protocol in an Oct. 31 email to Waxman, Farano asked that CPR let him know when the new rules were published “so that we may link to it in our terms and conditions.”
Alsup certainly seems to think there's something worth the public knowing about here [3]:
> Judge Alsup also said the public deserves to see the CPR emails, since the material “would be useful to the public in evaluating the true extent to which (CPR) is impartial.”
Also the way cases will be brought seems like it would create perverse incentives on the rulings.
> The International Institute for Conflict Prevention & Resolution, or C.P.R., was willing to allow DoorDash to arbitrate “test cases” and avoid having to pay the fees all at once. C.P.R. also took feedback from Gibson Dunn on the proposed new rules, though it did not consult with the dashers’ lawyers.
> Also the way cases will be brought seems like it would create perverse incentives on the rulings.
> > The International Institute for Conflict Prevention & Resolution, or C.P.R., was willing to allow DoorDash to arbitrate “test cases” and avoid having to pay the fees all at once. C.P.R. also took feedback from Gibson Dunn on the proposed new rules, though it did not consult with the dashers’ lawyers.
Very much so! And this seems to be why Alsup wanted the discovery documents made public, so people could draw their own conclusions on the lack of independence of the CPR.
I must confess I don't like the whole model of arbitration, as it feels full of perverse incentives to begin with - an arbitrator gets selected, so one that finds against the big company too often won't be getting much work!
It seems like an easy tweak to nullify this strategy is to invalidate automated arbitration claims.
Even without this tweak, if a company saw a huge increase in "cookie cutter" arbitration suits they could probably just not respond to these suits and hope that the majority of complainants aren't willing to go to court. A cookie cutter suit likely indicates a low-effort action, not likely to be followed up with a lawsuit. How many of the 6,000 DoorDash claims would have gone to court if DD just didn't respond? At $1,500 per claim even if dozens or a couple hundred went to court DoorDash may have still have saved money.
That won't work, because someone will setup a "assign me power of attorney and I'll get you something in return for 30% of the profits" service. That service will first file several thousands of arbitration claims, the company doesn't pay and then it will file a class action lawsuit and make it lawyers rich.
The article mentions 6,000 arbitration cases against DoorDash amounted to $9 million in fees from the American Arbitration Association. That's $1,500 a pop!
If you have a dispute with a company, and are bound by an arbitration clause, it seems like you have a $1,500 hammer to hit them with? (Assuming your agreement states that the company will front the fees).
What happens if the arbitrator decides the case against you? Do you owe that fee? Does this vary from one contract to another?
> Assuming your agreement states that the company will front the fees.
I'm not entirely sure they can agree to not front the fees without also potentially voiding arbitration. While money does mean a lot in court, there's a very strong sentiment that it should not be a barrier to entry. There's at least one case that went to appears where, when the plaintiff ran out of money and arbitration was canceled, the case was permitted into court:
The arbitration clause is for the company's protection, therefore the arbitration fees are their burden. If they breach the arbitration clause by not paying for arbitration in a timely manner, the plaintiff is entitled to go to court in the 9th and 10th Circuits.
An arbitration clause can't force the plaintiff to pay because it's in the contract for the benefit of the defendant. There's no "consideration" provided to make the plaintiff give up the right to pursue legal action in a normal court of law.
It's not necessary for each individual clause of a contract to have consideration for both sides, only for the contract as a whole to have it. The consideration is that you get to use the service in question.
This is one of the tradeoffs of forcing arbitration. If you take away my ability to file suit, you pick up more of the fees. When I did it last year, filing as a plaintiff was a flat $250. Getting pissed off people to come up with $250 may be a challenge but not impossible.
* I'm not sure if you could pull a Thiel/Hulk Hogan thing to bankroll an arbitration swarm but if so, this could definitely get ugly for companies that misbehave.
"this could definitely get ugly for companies that misbehave"
It doesn't just have to be companies that misbehave. If you don't like your competitor, maybe you'll sponsor that $250 per user to allow their userbase to throw arbitrations at them.
You can burn your competitor down at a ratio of at least 1:5 if you do something like this. If you take some fees for every case you win or that ends up settling, the ratio will be far better than 1:5
The arbitration system as it stands is a tool that allows anyone with enough money and intention to smite any company by pulling together unhappy users and paying arbitration fees for them.
Yes, when you file an arbitration against a company, regardless of how legitimate your filing is or how likely it is to be thrown out of court, that company is out at least $1000. If you wanted, you could pull together 10,000 HN users to file arbitrations, and HN is going to be hit with a $10M hammer regardless of whether there is any legitimacy to the claims.
I believe the amount varies state to state, but is generally over $1000
> (Assuming your agreement states that the company will front the fees).
The agreement specifies the arbitrator you use. In this case, the fees are set by the arbitration company, not by any contract between the parties to the dispute. It's not a matter of "who picks up the fees"; there's one fee for the company and a different, much smaller fee for the complainant.
(Of course you could have a contract specify that one or the other party was responsible for the other's arbitration costs, but that's not happening here and seems unlikely in other areas.)
If the service’s promise is to deliver warm pizza and they fail without compensating the customer (as these delivery services often do, essentially saying “tough luck” with fake, canned apologies and hoping you don’t bother doing a chargeback) then I don’t see why the customer shouldn’t be getting $1500.
> The International Institute for Conflict Prevention & Resolution, or C.P.R., was willing to allow DoorDash to arbitrate “test cases” and avoid having to pay the fees all at once. C.P.R. also took feedback from Gibson Dunn on the proposed new rules, though it did not consult with the dashers’ lawyers.
DoorDash gets to try a few cases with this company to see if they like the results. That couldn't possibly create a conflict of interest.
> DoorDash got the bill for the 6,000 claims — more than $9 million.
> DoorDash balked, arguing in court that it couldn’t be sure that all of the claimants were legitimate dashers. The American Arbitration Association said the company had to pay anyway. It refused, and the claims were essentially dead.
How is that legal for binding arbitration? Didn't both sides agree that disputes will be resolved by arbitration?
It doesn’t appear to be legal. But that would require a court order to enforce the arbitrator’s ruling. Benefit here being, there can be excess damages found against DoorDash if they’re acting in bad faith.
It seems simple enough for a binding arbitration clause to simply require the plaintiff to pay, and to tack on additional clauses to indemnify the corporate party.
I wonder why the issue of being able to waive away your rights - forced arbitration, non-competes, severance packages etc. never come up at the presidential campaign stage.
Seems like this is pervasive enough to affect pretty much everyone. Or am I misunderstanding something here ?
I think because the issue seems too theoretical to most people. I'm betting that most people have never felt a negative impact from forced arbitration clauses, or non-compete agreements. Anecdotally, I've never once felt the need to take a company to court, only to be stymied by an arbitration clause. Nor have I been prevented from getting hired due to a non-compete. And I don't think I know anyone who has.
I'm not saying these aren't valid and serious issues. Just that they're not day-to-day matters in the same way that healthcare, taxes, gas prices, or housing costs are. They're the type of issues that nobody thinks about until it bites them one day.
speaking from my personal experience, I've seen non-competes being pretty pervasive outside tech and some states like CA or MA, I've had competitors flat out refuse to proceed with an interview because I had a non-compete. whether it is enforceable is a different question but it does reduce opportunities.
Like you said, it's probably not what the majority of people are experiencing.
CA or MA? Noncompetes have historically been completely unenforceable in CA, whereas until recently MA had a pretty oppressive noncompete regime. That contrast is actually commonly credited with why Silicon Valley overtook Route 128 in technological innovation: https://www.vox.com/2016/4/12/11349248/noncompetes-silicon-v...
I noticed that Pete Buttigieg worked into his stump speech a remark about how "you’re not free if you can’t sue your credit card company even after they get caught ripping you off"[1].
> Seems like this is pervasive enough to affect pretty much everyone.
Sadly, it's one of those things that effects everyone but that they don't know about until it's too late.
Wouldn't this lead to a two class society, much like the accredited investors for startups?
E.g. if you have a task to do for which you have to reveal secrets, how do you protect your moat without non-compete clauses if you hire employees or contractors? In other words, you need people who are allowed to sign away their rights. If you don't allow this as a default state, you have to hand out licenses to those who understand the issue.
Right now, you have the concept of Age of Majority [1]. We simply assume that everybody who is old enough is capable of understanding his rights. If you question this, you will have a funny presidential campaign where you ask people to vote for you because they are not competent enough. That said, how is the president the right person to change that law?
1. The Democrat powers-that-be like arbitration as much as Republican p-t-b, so it is not a net gain to feature it prominently.
2. For the most part, the direct gains to consumers are small. Even if you get Door Dash to pay out two-thirds of its $9 mil., it's less than a thousand bucks per person. Pay a $250 filing fee, figure 1/3 fee for the lawyers, and you get $500 in an ideal case. That's nice for clients, but not life-changing. Indirectly, of course, there are large benefits.
3. Compared to one client's recovery, it looks like a windfall to lawyers. And most Americans would rather shoot themselves in the foot (metaphorically, at least) than help lawyers get rich.
(In fact, it's probably not all that profitable for the lawyers. It looks like low-margin work that only pays off for the firm if each lawyer tries to manage an ungodly number of cases.)
They won't be the people funding your presential campaign though... Obama's campaign did cost about one cool billion dollars. Even if you get a million of these guys,each would have to contribute $1000..I suspect Trumps campaign was even more expensive.
A billion dollars? About $3 per US citizen for the single most powerful position in the world, with saturation media coverage of the campaign for one to two years. Doesn’t seem like a lot. Trump spent under $400m, Hillary under $600m[1]. Bloomberg spent more on his primary campaign than Trump did from start to finish[2]. Steyer spent ~$200m and didn’t break 4% in Iowa[3]. Sure looks like money likes a winner rather than buying elections.
It's not $3 per vote though the math is much more complicated. For starters not everyone is registered or votes on any given election (even a presidential). Next you have to factor in the primary and electoral college. Votes in Florida and other swing states are much more 'expensive'.
Saying that arbitration agreements are signing away your rights is analogous to saying that joining a union means signing away your rights, because it often entails agreeing to only work at union jobs (you're "signing away your rights" to work for non-union employers). Yes, you're engaging in a contract that limits your options but you're not relinquishing any actual rights. Just like how a union can condition employment on agreeing not to work with other employers, a company can condition employment on agreeing to settle work related disputes through arbitration.
A union may protect your rights, but they do ask for some in return - often the ability to work at non-union jobs. The point is, you're still "signing away your rights". You're agreeing that you won't do certain things that are within your right to do, as a condition to employment.
Arbitration is ubiquitous because even at the cost of hundreds of dollars per hour arbitration is a lot cheaper and faster than going to court. And if people don't like the results of arbitration, there's still the option of claiming impartial arbitration and filing a lawsuit anyway. Companies that have arbitration agreements still get sued.
Response to techsupporter, HN isn't letting me make a new comment:
> This is not accurate. Almost every mandatory binding arbitration clause of substance includes wording that the arbitrator's decision is final and cannot be appealed.
There is nothing to stop you from appealing anyway. The fact that you're trying to seek an outcome different from the result of private arbitration does increase the chances that the courts will decide to reject your case. It onus on the plaintiff to prove that arbitration was not done correctly.
There are good observations to be made about the impartiality of arbiters - it's companies that are usually the ones paying for their services, and so it's not hard to image that this creates a conflict of interest. But a company that can force arbitration, and then use an arbiter that had agreed to dismiss all complaints is not correct - the kind of scenario you lay out is exactly the reason why you can sue even after agreeing to arbitration.
> A union may protect your rights, but they do ask for some in return - often the ability to work at non-union jobs. The point is, you're still "signing away your rights". You're agreeing that you won't do certain things that are within your right to do, as a condition to employment.
You’re right but that’s not a great example of the rights you give up on joining a union. The right to work non union jobs isn’t particularly valuable except to non members and non members and people just starting their career are not the union’s concern. They protect the interests of the average member, so people for whom it’s a career, who have some years of experience. Those don’t generally work crappy jobs unless there’s discrimination against them.
Giving up the right to negotiate your own compensation would be a huge deal for any professions or jobs with obvious large differences in productivity and many employers. So you only see that at the bottom end. No limits on top end compensation. The Screen Actors Guild doesn’t say with this many years experience you must get paid this much, they say no one can get paid less than this.
With a single employer compressing pay differentials is a lot easier so you get what the average member wants, security of tenure, seniority based pay and promotions. If you want to negotiate something different go find another employer.
Union membership is usually job-specific. If you leave the job, you generally also leave the union unless your new job is also a union job. And even if the new job is a union job, if it's a different union then your position in the old union doesn't transfer over.
Talent guilds are generally the only unions that restrict their members from doing non-union work, and even the talent guilds have exceptions for lower-earning members.
"Arbitration is ubiquitous because even at the cost of hundreds of dollars per hour arbitration is a lot cheaper and faster than going to court"
My understanding is that arbitration is only a thing in the modern world because there is a law allowing it, and the law only allows it because of "activist judges" interpreting it, although of course we don't call them that.
> And if people don't like the results of arbitration, there's still the option of claiming impartial arbitration and filing a lawsuit anyway.
This is not accurate. Almost every mandatory binding arbitration clause of substance includes wording that the arbitrator's decision is final and cannot be appealed. Also, the question of whether the arbitrator's ruling was fair and impartial--did you mean claiming "partial," or biased, arbitration?--is, much like the question of jurisdiction or ability to arbitrate, left to the arbitrator to decide under those same terms.
This can’t be true or arbitrators would be able to openly ignore the plaintiff’s testimony, say so in writing in their judgment and condemn the plaintiff to death for being a minute late to their job at WalMart.
The law does not work like that because judges don’t work like that. There are rights you can’t sign away. No matter what the contract says non competes are not valid in California. You can’t agree to be someone’s slave if you can’t pay your debts and have the court enforce that.
> This can’t be true or arbitrators would be able to openly ignore the plaintiff’s testimony, say so in writing in their judgment and condemn the plaintiff to death for being a minute late to their job at WalMart.
Obviously there are limits, but if the arbitrators aren't open and blatant about their bias, I think you'd be hard pressed to find any remedy if you were wronged by a biased arbitrator.
The point of arbitration isn't to allow companies to engage illegal criminal conduct like slavery, it's to make them practically immune from civil court proceedings.
I briefly worked as a field service engineer before becoming a programmer. The job that I worked was non-union but many (all?) of the electricians where in the local union.
Do you know how that works with the idea that by joining a union you are giving up your right to work non-union jobs?
I'm not trying to say that you are wrong, I just don't know enough to know if that was a special case or if there are certain circumstances where a union worker can or cannot work a non-union job.
> But a federal judge in San Francisco wasn’t willing to go along with it. The judge, William Alsup, ordered DoorDash in February to proceed with the American Arbitration Association cases and pay the fees.
Ah! Gotta love judge Alsup. Back in SCO vs Novell, and in Oracle vs Google.
> ... in a hearing, Judge Alsup questioned whether the company and its lawyers really believed that.
> "Your law firm and all the defense law firms have tried for 30 years to keep plaintiffs out of court,” the judge told lawyers for Gibson Dunn late last year. “And so finally someone says, ‘OK, we’ll take you to arbitration,’ and suddenly it’s not in your interest anymore. Now you’re wiggling around, trying to find some way to squirm out of your agreement."
> "There is a lot of poetic justice here," the judge added.
So glad he ruled against them. Door Dash forced its dashers to use a specific arbitration organization, and then when they actually did, refused to pay their fees and tried to take their case to a different arbitration organization that was more favorable to them. What a load of total bullshit.
Goes to show the only "efficiencies" brought about by arbitration are discouraging people from bringing claims in the first place.
I don't see how that refutes anything. Java is a complicated language and I personally wouldn't hire anyone who are vain enough to say "I know Java". In any case, the very next sentence of the article is "Not very well, anyway", which definitely supports the claim that he taught himself Java.
Well, I suppose it was a bit of hyperbole on my part, but the thought of someone saying "I know Java" made me think of something like that "I know Kung Fu" moment from The Matrix, as if there's some amount of knowledge after which you just have the skill. I consider Java to be one of these things like Kung Fu, or Chess, or photography, where thinking that you now know it just means that you're so early in your learning process that you can't see the full lay of the land yet.
Yes, but then the rest of the sentences after that go to great length to explain his actual programming background, in QuickBASIC, and how he applied his knowledge of fundamentals to the scenario at hand.
SCO vs. Novell was in Utah, under Judge Kimball. But Alsup was impressive in Oracle vs. Google, noting that he had some familiarity with programming and calling out Math.max() as the kind of function where scènes à faire and merger probably apply.
> as the kind of function where scènes à faire and merger probably apply.
I had to look this up -
»Scène à faire (French for "scene to be made" or "scene that must be done"; plural: scènes à faire) is a scene in a book or film which is almost obligatory for a genre of its type. In the U.S. it also refers to a principle in copyright law in which certain elements of a creative work are held to be not protected when they are mandated by or customary to the genre.«
Like what the hell is even happening in the US? I understand that for the international stuff it's sometimes hard to use national courts, but what's wrong when dealing with the internal? Courts aren't good enough? So maybe fix them, no? Of course, easier to make your own court where you'll have an advantage...
This strategy does result in increased upfront costs for companies. But this sort pile-on strategy seems like it could be countered with arbitration agreements that aren't subject to any sort of timeline, or arbitration agreements that preclude use of automated complaint filing systems.
Fundamentally, this strategy of inundating the company with claims only works because it's more expensive for the company to respond to an arbitration dispute than it is for an employee or customer to file one. If that asymmetry goes away, this strategy no longer works. I could see a company witness a spike in complaints, especially if the complaints are filed from an automated system, and conclude that these complaints would likely not result in lawsuits if arbitration was rejected. Now the onus is back on the complainant to actually go forth with the lawsuit.
I think it remains to be seen if the courts will allow arbitration agreements that are completely one-sided. I mean, a big part of the original Supreme Court rulings was that the arbitration proceedings would be impartial. Having an arbitration agreement with no timeline seems like it would be more likely to be overturned.
>I think it remains to be seen if the courts will allow arbitration agreements that are completely one-sided.
One-sided bad faith terms of service have been enforced to great effect in recent years, so I can't see a one sided arbitration agreement getting any scorn or backlash from the current judicial makeup.
It doesn't matter if 90% of plaintiffs choose not to go to trial. The 10% that do are more than enough to overwhelm the company's ability to individually manage each case.
Also, in the US legal system, it costs very little to file a lawsuit. And for plaintiffs, it generally costs nothing at the early stages because most plaintiff lawyers work on contingency.
It will still be far less expensive for the filer per-complaint, than for the company total. I’m also not sure that you can prove an automated complaint is distinctly different than a manual one.
Posted here a few months ago as well [1] when the judge's decision was given. This NYT article doesn't add anything new, and I suspect it's a result of the defense lawyers calling in favors order to put pressure on DoorDash which filed for it's IPO in February.
DoorDash is most likely going to use the surge in traffic because of the coronavirus to help push their IPO through sooner than later, taking advantage of the fact they're one of the few types of businesses benefitting from the lock down. If the defense can threaten that IPO, DoorDash might be more pliable to a deal...
Good on Judge Alsup. This is the bed they asked for. They can sleep in it.
Not much gets me going more than someone making tons of demands and then backing out when they actually have to deal with the consequences associated with those demands.
As a European, reading these articles on arbitration, no-compete, required licenses, 'right-to-work', tipping, "gig work", firing over zoom, and so much more, it seems U.S. workers could really use some collective bargaining?
Here unions are the obvious century-old solution to improve working conditions, why don't workers organize there?
Are we just lucky here, like with universal health care?
Unions have suffered from a bad reputation in the United States over the past few decades.
Some of it is deserved BTW; some big unions were/are corrupted and some were connected with organized crime. Even more innocently, unions have been quite conservative; as jobs and technology changed some were very resistant and fought modernization (requiring people who were not needed to be around). But a lot of it also stems from corporate resistance to unionization and the high regard in which ordinary people hold the opinions of corporate managers in the USA.
All that being said, unions have been very good for labor, and when I've worked in union shops (not in a unionized role) they've been really great in terms of qualified people and high quality work. I built my house using union labor and I'm glad I did.
Europe is not immune to these diseases by the way. Certain French unions certainly negotiate against the greater interests of society. And in Germany my non-unionized brother in law (a mechanical engineer) was not allowed to work late at VW -- he was trying to finish a project one evening and a union guy came by and cut his PC's power cable while he was designing a part.
Most of the bad reputation is deserved. Most US unions are horrible organizations. There are still some good unions, just not many.
That doesn't make the concept of a union bad. They worked much better 50 years ago, even. It's a great concept, but the implementation got corrupted over the years.
I don't think we'll fix unions' reputations without first fixing unions. And we really need more unions and more credible unions.
As a footnote, in my local school district, under coronavirus school closures, the teacher's union negotiated that the teachers get paid, but they don't need to remotely teach students. Some teachers continue teaching for some amount of time, but essentially on a volunteer basis. Many teachers are just sitting at home, doing nothing except for collecting a pay check.
Are you sure it was the union which forced the district not to remote teach? I live in an area where teachers are not unionized and the teachers are still getting paid and not teaching. The school district has signed contracts with the teachers which doesn't have any terms which stop payment because the schools close during the year and the district is not requiring remote learning because of equal access issues.
> doesn't have any terms which stop payment because the schools close during the year
And so they shouldn't! In many (most?) US states, the public schools are unconditionally funded by the state based on student enrollment figures. Cutting teacher pay during a closure under such a system would be a purely greedy move.
If my comment seemed to imply I thought they shouldn't I didn't mean to. I agree that they should get paid.
I don't know how it works in the majority of states but I know the model of mostly state funding based upon student enrollment is not universal. In my state the majority of funding is from local tax revenues. For example the budget for my local school district is approximately $1.3 billion. $370 million comes from the state and $30 million comes from the federal government. Another $40 million comes from "misc other sources" and $860 million comes from local tax revenue.
I hadn't considered the local tax aspect. I understand that many areas are projecting large shortfalls in the near future, so I suppose there could be some issues. I guess it would probably depend on how the education taxes were levied in a given jurisdiction (property, sales, or something else).
Wow, that's terrible IMO. Public schools are quasi-governmental entities with largely fixed costs. Aren't the taxes getting paid either way? Doesn't regulation require a specific number of school days per year? And there are certainly truancy laws on the books.
In their defense, developing content for a classroom is a shit-ton of work. Flipping that over to Internet-only is going to take some time. If they are just sitting at home getting drunk and trolling facebook that's one thing, but it's going to take a couple of months for teachers to effectively pivot to a mode of teaching that they've never had to do. Until then you're just going to see a trickle of work even from the best of them b/c they are going to be focused on trying to develop a game plan to close out the year.
My wife taught K12 for 12 years and then became an instructional coach teaching teachers how to teach. There's a shitload of work if you want to do it right, and at least half (in our district anyway) will stretch themselves extremely thin to do so. Half of the rest are 9-5'ers and the remainder are shitheads.
Well, I'm pretty sure. The negotiation between the teacher's union on the administration is a closed-door meeting, but I follow district politics very closely.
Perceived equity issues fed into this as well. The result, of course, is that parents who have time to teach kids have kids who are learning, while the vast majority of the district is learning nothing. With remote learning, the results would be less differential. But I guess the districts feels worse about inequities it contributes to than ones that arise out of inaction. We have a 1:1 program, so all students have technology.
But I would the union preempted this, and is what made this discussion moot.
When my mother was a school teacher, the union had mandatory fees which went to partisan political campaigns against her ideology and self interest. I think this was eventually challenged and overturned in court, but it left a terrible impression.
This is my biggest gripe with unions in the US: that they can basically force you to join the union against your will if you want to perform certain jobs. The Teacher's Union is notorious for this.
There was a fairly recent ruling from the SCOTUS that struck down compelling non union members to pay union dues. It was as recently as 2018 or 2019. Cant remember the case name, but it originated in Illinois (a very, very pro union state).
My wife, two of her brothers, their spouses and obviously many of their collective friends are public school teachers in the US. The teacher's union in our state is largely a spineless organization that will protect the points they negotiate into a contract but leave legitimate educators high and dry when it comes to real issues. It's one of the worst unions that I've had the occasion to see up close and personal...and I'm a former member of the Teamsters.
A lot of the challenges come out of the specifics of the laws surrounding unions. They were written in a much rougher era, where corporations and unions were very much in direct opposition. If we could re-write those laws, we could open the door to much more cooperative relationships between unions that the current laws do not allow. Unfortunately, there's no sign of the republican and democratic parties getting together to make a grand bargain on the laws, so we're stuck with them as they are today.
"much more cooperative relationships between unions"
Sure, cooperation sounds good in theory, but don't we have examples (in the US) of where management of a company and management of their union ended up very friendly at the expense of the workers? I'm pretty sure I read about stuff like that in the context of the recent automotive union corruption scandals.
I'm thinking more like things like works councils, and other ways that the employees could play more of a role in running the company, rather than the adversarial setup we have now. Here's an article from 1981 that gives some background:
https://digitalcommons.law.msu.edu/cgi/viewcontent.cgi?artic...
Past performance isn't always indicative of future performance. Cultures and worlds change. In many cases, people confuse poor concepts with poor execution (or vice-versa: bad concept with excellent execution or good luck can be successful).
I say try it maybe in one state and see how it goes.
It has to be said that most employers are corrupt in the US too, non-compete, arbitration, weird ways of paying salaries, generalized surveillance of employees, brutal layoffs, Gag orders in exchange for severance, etc.
as a salaried worker I refuse to participate in flex PTO, it's not how the labor laws are written. I work for a significant part of the day and have a legitimate reason to stop, I do not submit any leave requests.
My company recently granted an extra 40 hours of COVID PTO to use for flex, which is nice, but they could just stop trying to work around labor laws.
Having a 2nd hand experience with Hollywood Unions, there are so many outdated rules that make filming a nightmare. If you're producing a union film then you need to hire people for certain jobs and you're not allowed to do those jobs yourself even if it would make everything go smoother. If you don't abide by union rules then you're not eligible for certain awards or screenings.
I had another experience in college where the TA union put up barriers for undergraduate students who weren't TAs to apply for university teaching opportunities. Any discussions or office hours must be held in the presence of a TA and if your schedule didn't work out then tough luck.
Having 1st hand experience with Hollywood unions, (and being 1 background extra gig away from SAG eligiblity) I can say that none of the rules are outdated, and they definitely don't making filming a nightmare.
Yes, if you're making a union film you need to hire union members for positions covered by the union agreement. But unless your studio has signed an agreement with the unions, you're not subject to union rules. Generally, only the big studios and the bigger indies are subject to the Hollywood union rules.
If you don't abide by union rules then you're not eligible for certain awards or screenings.
This doesn't apply to the Academy Awards, Golden Globes, or other major awards. Many of the films nominated for these awards every year don't abide by union rules because their weren't subject to them.
Building your private home with union labor is a completely different thing than unionized work forces in companies.
When building your home, you have the option of hiring non-union workers. Workers have the option of not joining the union. The union essentially acts as a service provider to the independent workers. These individuals charge quite a bit more than non-union workers, but often have astounding levels of competence, productivity, and workmanship.
When a company is unionized, none of those things are true. Instead of the union being a de facto endorsement of a particular worker, it acts to protect its own power over the workers. Instead of the company having a choice about who to hire for a particular role, it is forced into one choice. Instead of workers joining a union for their own benefit, they are forced to join because of legal coercion. The union is highly motivated to control and limit its members--freedom for the members means destruction of the union.
Instead of the union being a de facto endorsement of a particular worker, it acts to protect its own power over the workers. Instead of the company having a choice about who to hire for a particular role, it is forced into one choice. Instead of workers joining a union for their own benefit, they are forced to join because of legal coercion. The union is highly motivated to control and limit its members--freedom for the members means destruction of the union.
All of the statements in that paragraph are false.
> Unions have suffered from a bad reputation in the United States over the past few decades.
When I see "unions" such as "game worker unite" which is more of a communist political party than a union, or what Kickstarter union wants (have more say on what campaigns can be featured on Kickstarter or not, which is not what a union should be about), I understand why American unions have such a bad rep. These 2 examples aren't what unions should be about. What does a say in moderation policies on a platform has to do with worker conditions? Nothing.
>Are we just lucky here, like with universal health care?
You don't hear as much about European problems online, because they're spoken about in the respective nation's language. This means that it's hard to compare. Most European countries also have many problems like the US. Maybe not to quite the same extreme, but they do exist. The US does have a few things going for it though: very strong protections of speech, very high wages, a system of incredible services - things like Amazon, FedEx etc. From my perspective, things in the US actually seem better than in Europe for the long-term. They just have a few very obvious pain points like healthcare and the silliness of a lack of worker protections in some states.
Just keep in mind that unions aren't universal across Europe or even the EU. They usually exist, but they tend to not have much leverage.
I grew up in Canada, then moved to the US for 5 years before returning home to Canada. It always killed me when my US coworkers said teh same thing about "free speech" as i watched censored TV shows in the US which are not that way back in Canada.
I think "free speech" on the US side is highly overrarted and if you look into it more seriously you will find many nations which are at least at the US level. Some higher, like Canada, which doesnt have the "7 words you cant say on TV" restriction.
The "seven words" only applies to _broadcast_ mediums (television and radio) because of the limited shared medium thing. I'm not sure I agree with the reasoning, but that's life.
More generally, protections against the government for personal speech are more complete in the US (both in principle and in practice) than any other country I'm aware of. A few examples might be the Westboro Baptist Church or the infamous Brandenburg v. Ohio case. (https://en.wikipedia.org/wiki/Brandenburg_v._Ohio)
(My view is necessarily US-centric though, so do feel free to point out any counterexamples I might not be aware of.)
Again, this is just my anecdotal view based on only 5 years in the US. We (Canada) have equal rights and so i always found it odd how often i was told about "Free speech" but couldnt see anything different in the US vs Canada.
we do have "hate laws" here, and you see others commenting and outlining how this is a "restriction" on free speech, but if you look at the law, you will see the US has something similiar as well:
The FCC has obscenity regulations for broadcast TV in the US under the idea that the broadcast spectrum is owned by the people. Cable television has no such restrictions. That rationale holds up a lot less now than it did in the early days of broadcast television, but it's still a far cry from Canadian hate speech laws in which the expression of certain points of view is deemed a crime.
> a far cry from Canadian hate speech laws in which the expression of certain points of view is deemed a crime.
Can you link to these laws? Because if you're talking about bill C-16, it's very clear that it isn't making it a crime to express certain beliefs, it's making it illegal to discriminate based on gender or gender identity. Just as the US does with regards to certain traits (such as color, religion, marital status, etc)
The "censored" TV shows are really just the networks not wanting to piss off their advertisers. There is little to no censorship in the sense that the government actually prevents you from publishing something - especially now that almost all media is internet or cable. The last area where government actually decided content was with broadcast television, since the government got to decide how to use a limited number of frequencies.
The FCC still levies fines for certain levels profanity and certain forms of nudity for over-the-air broadcasts for TV and FM/AM radio (I dont think satellite is bound due to being a paid service). Granted the standard for finable offenses has loosened over the years, and you can get away with more late night (presumably because the kids should be in bed).
I dont recall if the "wardrobe malfunction" in the Janet Jackson/Just Timberlake Super Bowl half time show resulted in a fine, but pretty much all live broadcasts are now delayed 15-30 seconds or so that so a producer (or whomever) can hit the censor button if something comes up.
Right, but over air broadcast hasn't been a primary mode of media consumption for decades at this point. The "censorship" on cable broadcasts you refer to are private companies keeping their content advertiser friendly not government restrictions.
Your response has little to do with the post. The FCC is a government agency, correct? so when it issues fines for "free speech"...
"Between 1990 and 2004, the Federal Communications Commission (FCC) issued fines totalling $2.5 million to radio licensees for airing material it deemed indecent from The Howard Stern Show, the highest amount of any American radio show. "
"On April 8, 2004, Clear Channel was fined $27,500 for each of the 18 violations for a combined $495,000 NAL for airing the broadcast on its six stations that carried Stern"
No, they issue licenses to broadcast on certain frequencies. And some of these licenses dictate what content can be shown and at white time of day (usually to the effect of restricting mature content to evening and nighttime airing). This is because of the nature of how bandwidth is publicly owned, and so the the public gets to decide how to allocate a limited resource. Fines exist to accommodate the fact that certain content can't be censored reliably (e.g. live interviews or shows where someone can go off script), while still creating a disincentive to violate the terms of the license.
Any of these publishers could sell tapes or dvds of these shows and face no fines whatsoever. Similarly, they could air them on the internet or on cable television that is not subject to public control of content. There's no restrictions on the content itself, there's restriction on the use of publicly owned bandwidth.
> I think "free speech" on the US side is highly overrarted
I think it is properly rated. If you only have restrictions against vocabulary then you still have all the other liberty and you can advocate a repeal of the law that bugs you.
I suspect the censorship you were noticing was self-censorship in order to avoid adverse public reaction.
A legendary animated show spells out that you can only use the word "shit" metaphorically, e.g. "I feel like shit". I have to admit that most of the time I prefer people would go easy on my ears if they have to talk literally about defecation.
Misread your comment as “7 letter words you can’t say on TV”. I’ve spent way too long looking for offensive 7 letter words. It seems that for a word to be truely offensive it is usually very short.
> only prevents government restrictions on speech, not restrictions imposed by private individuals or businesses unless they are acting on behalf of the government.
Which means the US right of free speech is somewhat weak compared to some other countries.
Especially it means that any company working "in favor" of the government but not "for it" could very well restrict free speech.
I never understood why anyone from the US think they have a "very strong protection" of free speech.
> any company working "in favor" of the government but not "for it" could very well restrict free speech
I don't follow what you're trying to say here? A private company can do as it pleases because an employee's speech could conflict with its business interests. In some cases, other federal, state, or local laws offer additional protections to the employee (ex California provides very strong protections for employee political speech).
The idea is that the government isn't allowed to restrict your speech, but it also can't force you to interact with someone you don't want to. If you say things that offend people, the consequences are your problem to deal with.
Facebook could decide that LGBTQ+ people are offensive and strongly restrict theire free speech even for non LGBTQ+ topics (sure there are other regulations to prevent this, but they have much less tooth).
That you have to handle consequences when you insult someone or you IDK openly call for the murder of all ... People that's a different matter I didn't intend to go into.
> that's a different matter I didn't intend to go into
I don't think you can avoid it though.
What if I personally choose not to associate with people I view as activists? Surely that's my right? What if I start a small business that's very up front about refusing clients who are activists? What if Facebook were to ban the accounts of known activists?
Who gets to set the criteria that determine if a topic or group is protected, what constitutes an insult, etc? Who do these rules apply to - only the largest of businesses or even to individuals? How do you balance such rules against the freedom to choose not to associate with someone? How do you avoid situations in which such rules would constitute a form of forced speech?
If you tell Facebook (using your example) that they have to allow speech on their own platform that they don't agree with, then you had better have a very clear, comprehensive, and unambiguous set of legal tests to apply because you're opening an absolutely enormous can of worms. Worse, Facebook is the _easy_ case because you can construct a reasonably convincing argument that the large public cloud providers have intentionally made themselves a sort of public commons (albeit a strange privately owned and operated one). As you look at progressively smaller businesses that serve fewer customers and have more competition, such an argument begins to break down.
I can see the reasoning that a forum (ex Reddit) or web host (ex Cloudflare) is a platform provider and should be required to be neutral, similar to the DMCA Safe Harbor provisions. But I can also see legitimate concerns arising if (for example) YouTube was forced to host videos that they felt tarnished their brand or (for example) Reddit had been legally prevented from banning /r/watchpeopledie.
The US has a very flexible labor market that allows for easy entry and exit, but can appear (and be) ruthless in its drive for efficiency.
Europe is great for workers who get lucky enough to get a contract (French unemployment is often 2-3x US unemployment), don't want to leave, and don't want to be rich.
Average US GDP per capita is 35% higher than France and Britain, despite having large numbers of poorly educated immigrants. Furthermore, tax rates are much lower in the US than in Europe, so people can actually consume quite a bit more.
In particular, many working class people who would benefit from strong unions are opposed to unions, or even if they are not opposed do not consider how their voting patterns/choices affect union viability.
Not sure why you got downvoted for simply raising valid questions,but here we are. I am a European as well,lived in 4 different countries in Europe and they were all so much different. Americans could have whatever they want, including free higher education, healthcare and strong employment laws.The country is rich enough to be able to support it. However, the culture of the country is different and that culture right now doesn't want all those things for one reason or another. Some are because of lack of education or simply experience,some are purely ideological,while others have some logical and educated opinions on why it shouldn't be the case. Unless there's a dramatic shift in opinions,for one reason or another, these things won't happen. A very good example of this is the tipping system: the restaurant owners love it because they don't need to pay for it.The clients kind of like it because they do feel in charge and they 'reward' waiter for the service they believe was worthwhile. The waiter thinks he's doing great because his base salary is so piss poor that any extra coin or note look like a lottery ticket.So all the stakeholders are happy. You could even make career out of it,if you are really good at it.In most European countries, waiter's job is usually something a student does or someone who doesn't have any other options. The job is seen as something anyone could do with 5 min trainin. There's no aspiration to become a really really good waiter,who understands when to approach a customer,when ask when not to ask and all the hidden and subtle signs customers make during the evening. And the job usually doesn't pay that much,unless there's tipping involved ( it varies a lot between European countries). Which one is better?
> A very good example of this is the tipping system ... So all the stakeholders are happy.
As a recent example in my state, a local establishment raised wages, raised prices, and strictly disallowed tips. I thought it was a great idea, but apparently sales fell and there were complaints from both wait staff and customers. They promptly switched back.
> Which one is better?
Honestly? The European one IMO because it actively prevents the exploitation of workers.
Some people do not tip at all so I am sure they were unhappy about the higher prices. Did the restaurant raise wages at or above the level their top employee was earning with tips? If it was a cent less than that i can understand why employees were unhappy.
There is immense cultural momentum behind tipping culture.
Where I live it is common to have a 15+% gratuity added to the tab automatically and then an optional extra tip that goes to the full staff. This seems to be a reasonable compromise.
Americans are much richer than Europeans so this doesn’t seem like an obvious choice. As of 2011 the UK and France were poorer than all but two US states, Germany poorer than all but six[1]. That understates how much richer the US is. Look at average household consumption [2]. The US, 5% of the human race, is behind Hong Kong, a city state and almost $10,000 ahead of Switzerland. Average individual consumption would probably show the US as number 1 given bigger households than either Hong Kong or Switzerland. And as far as working conditions go in the US it’s generally actually possible to get a job. All of Southern Europe and most of Northern Europe have higher unemployment than the US and has for decades.
Unfortunately there's a lot of FUD over unions here and how they ruin things, employ lazy workers, are corrupt etc and therefore don't deserve to exist.
Of course the great irony is all of the arguments against unions also applies directly to corporations, yet those same people that are against unions don't really like to talk about the idea of abolishing corporations. Usually those arguments turn into 'one bad apple' or 'they'll be out-competed' or something about the free market, never mind that unions operate on the same free market principle as corporations.
Does any juristiction require all these unilateral (in any sense) TOS to be pre-reviewed and approved as “fair and clear” by a public autority? It feels so elementary to me that I’m really surprised why not everyone is demanding it as basic human right.
The "reform" is to clog the system with a huge number of cases? I don't see the benefit here. A better solution would be for the American Arbitration Association to have a special system for class actions like government courts do.
While I like the general idea, I still think we need a wider answer to the question of companies like doordash. Employees (or whatever they are) won't get what they want this way any more than they would previously...
How come it seems like every time I hear Alsup's name in the news it's because he's telling a major corporation to stop being an asshole. It's refreshing to hear from a judge.
Basically, the strategy is "death by a thousand paper cuts." There may be legit cases for it, but in the end, it's a wrong solution. It could easily explode to be abused for minor complaints where a real class action lawsuit would be more proper. There should be a cost to a frivolous lawsuit. This seems to eliminate it.
I'm just wondering, could the plaintiffs in court now receive a higher settlement than they would have had their been no arbitration?
My thinking is basically they could argue that they agreed to the companies terms of arbitration and now the company refused to honour them requiring them to waste their time and money going to court?
Incidentally, the AAA rules have some useful provisions in consumer disputes. Either party can request to transfer the case to small claims court. At least in California, that's not only cheaper, small claims courts tend to be pro-plaintiff. You get to be heard in person in your own county by a real judge.
[1] https://www.adr.org/sites/default/files/Consumer_Rules_Web_0...