Binding arbitration and non-competes, are both disgusting anti-business, anti-American, anti-worker, anti-innovation, anti-rights that need to be killed.
These two horrible tactics have crept in since 2000 into nearly everything.
Signing away your right to compete and your right to use the legal system should both be illegal and have no place in America. How did we let this happen?
For non-competes, NDAs should suffice.
Arbitration should be a step towards legal rather than supplanting it. Many times arbitration is better for both parties in terms of cost/time but when it isn't people shouldn't be signing away the right into forced arbitration to go further.
I know one software developer personally who has been screwed over by a non-compete. I know others who simply ignore them, which is dangerous since different states have rules differently on their enforceability.
It's a far departure from other markets I've worked in. I've personally never even asked behaviour questions during an interview, and really I think you can get a good judge of behaviour just by watching the candidate answer technical questions.
I'm not sure if non-competes are the norm. I have a feeling they might be as they recently passed laws to ban them for low income earners. I've only had one job offer, and they refused to remove it. I have no problem signing NDAs, IP wavers, patent wavers, etc. But I refuse to sign anything that restricts my right to work after a company stops paying me. If it turns out all of them do the same thing, I might have to head back to the west coast.
I refused to sign it.
Of course, that's trading justice for money, which most people would agree is a terrible idea. Of course, that isn't reflected in the actual state of the law.
There are parts of forced consumer arbitraiton that companies do not like, but there's too much upsdie to precluding class actions. Things companies don't like include: the high up front cost and the lack of appeals.
There's nothing legally preventing arbitrators from being vehemently pro-consumer. The incentives prevent it but, legally, an arbitrator could award a crazy amount of money to a consumer on a tenuous basis and there's little that could be done. It's interesting that no such examples exist, however.
There are obvious incentives for the arbitrators to favour the people paying them - individuals are not going to be doing a lot of business with them, companies are.
He says exactly that in his comment. There is no law stopping them from doing it.
In my haste, I read that as "there is nothing stopping them from being pro-consumer, so there is no reason to assume that the judgements favour the businesses" for some reason.
One contract along those lines that I saw basically goes like this: each party picks its own arbitrator (presumably biased toward that party, whatever). Then those two arbitrators together select a third arbitrator, who will actually arbitrate the dispute.
Of course that's not what binding arbitration clauses look like, at all.
Are the arbiters really hired by the company?
As for the hiring part - the business pays most of the arbitration fees, but the consumer is on the hook for a nominal amount plus any attorney fees and potentially extra costs like expert testimony.
However, what Amazon does here is just wrong.
Arbitration is legal because of freedom of contract.
There is nothing "obviously terrible" about arbitration per se. When it is included in a freely negotiated contract between parties of equal bargaining power it is hard to find anything wrong with it.
The problem is when the parties do not have anywhere near equal bargaining power.
I'm talking about consumer arbitration, which is as you say, inherently unbalanced. Yes, I'm sure there are situations where it's a good tool and I'm not saying ban arbitration completely, but right now we can see the damage from it being misapplied.
That is, there is no benefit to agreeing to it at contract inception, if it were as stated: cheaper and impartial, i.e., a better court.
Indentured servitude is just contracting. Do you think it should be legal too?
My point is that because it is implied by freedom of contract, it is by default legal until we decide to make it illegal.
No, it's legal because of the Federal Arbitration Act passing in 1925. Prior to that, waiving of such rights "in advance by agreement" was explicitly disallowed, as SCOTUS determined in Insurance Company v. Morse (1874).
This is terrible because it leads to unjustly excessive punishment for smaller crimes if someone wants to exercise their right to trial, and people being told to just take the deal when innocent because a 1% chance of 10s of years of prison just isn't worth the risk when the alternative is you are out in months, for example.
It made me so furious because most people don't understand what they're giving up, and they won't understand until they get into an accident and learn they signed away their rights years ago. The way agents sell Limited Tort gives you a completely inaccurate impression of the potential consequences.
That sort of thing should absolutely be criminal.
So even if you're injured badly enough to need a year of physical therapy for full recovery, you would likely get no money for your pain and suffering under Limited Tort. Without Limited Tort you'd probably get anywhere from $30,000 - $100,000 for that amount of pain/suffering, loss of enjoyment of life, etc.
You can look up info on "piercing the tort threshold" if you're curious about specific injuries that are severe enough.
Do you think quantifying pain and suffering has a positive value even if its very hard to come up with a meaningful way to define suffering in terms of dollars?
1. Yes. Suffering isn't necessarily limited to some brief interval of time. For example, disfiguring injuries can impose suffering (employment discrimination, loss of consortium, etc.) throughout a person's post-injury lifespan. Money can mitigate burdens imposed by such effects of injury.
2. I don't know. But I would estimate the conversion factor for third-degree burns over 40% of a kid's body as greater than that of a kid's having lost a hand. YMMV.
3. Yes, I do.
If you're injured to the point where it impacts your ability to work, or you need extra care from someone... of course it offsets it.
For a furniture purchase.
With all that complaining about signing away your right to sue and work, why do you think it's OK to sign away your right to speak? Serious question.
NDAs are also bs mostly but they cover company specific confidential information and possibly information on clients, contractors, employees etc. All of that is fair to not speak about as that is their property and what they are doing.
Non-competes want you to usually stop using your skills that you brought to the company, with other companies. It is really absurd when a company that wants a 6-month contract wants a non-compete for 2 years, laughable.
Not discussing confidential material shared with you on condition of your employer with an NDA is quite similar IMO to not sharing material information about a company's health days before their public earnings call. 1st amendment rights are not absolute. I'm not allowed to engage in libel, yell "Fire!" in a crowded theater, etc. I think abiding by NDA's about internal, confidential information is analagous and helps promote real, fair competition.
Every time you say, "yell 'Fire!' in a crowded theater," a civil rights lawyer is forced to kick a puppy.
Imagine a physician signing a non-compete. What's he supposed to do then? Not practice medicine and go be a consultant or something?
My nephew was asked to sign a non-compete in a sandwich shoppe, to protects the trade secrets of making a ham sandwich!
This is not related to 1st amendment; this is no law being passed by congress or any government body. Nothing prevents a person from speaking after an NDA is signed - they won't get tossed in jail, because no law was broken. However, after doing so, they will be responsible for any civil penalties they agreed to when they signed the contract.
So if you sign something that severely penalizes going out on your own and competing against your employer, they're going to jump on that and treat it like a lifeline because it very much is exactly that.
Agreed. Here's how I look at it:
If a company really screws you over, you can sue. It's a lot of time and money, but it's worth it for a big problem. But what if the problem is small?
If I get screwed out of $5 by a dodgy company, I won't bother to sue. But if they've done the same to a lot of people, a class action lawsuit makes it worth some lawyer's time to go after them.
Arbitration clauses destroy that. Without class action, we need much more vigorous government intervention. Failing that, consumers lose the trust in the marketplace, harming commerce and making everybody poorer. And we'd likely see more proactive regulation as well, reducing innovation.
Don't sign the agreement if you don't like it.
For example, a contract in which I forfeit my right to life or ownership of my own body would be considered invalid.
The same should be true of a contract in which I forfeit my right to sue. Half the point of the courts is to serve as a final arbiter when a contract is insufficient.
I'm not sure I see the relation to powers of attorney. Are you saying that granting PoA to another person is similar to granting enforcement rights to an arbitrator?
If mandatory binding arbitration included as part of your standard interaction with businesses is a net negative for 99% of people and a positive for business owners and large stock holders there is no particular reason why the 99% can't vote not to allow the owners to do that.