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Uber Eliminates Forced Arbitration for Sexual Misconduct Claims (nytimes.com)
185 points by sna1l 6 months ago | hide | past | web | favorite | 171 comments



A step in the right direction, but I still can't believe forced arbitration was ever a thing, especially in these cases.

Still haven't re-installed Uber in over a year, don't miss it at all.

It does make me wonder how many ToS I've agreed to with forced arbitration clauses written on page 84 in size six font.


Lyft for example? Or Airbnb? They have forced arbitration clauses as well.

We'll see if they match Uber's commitment here.



Commitment is yet to be seen .... this is an attempt at change though, for sure.


I think its more important for Uber because they have a history of their drivers committing rape. I don't know if there are cases of that for Lyft or Airbnb but I have not heard about it from those companies.


What does the ride hailing service and infrastructure (platform?) have to do with the drivers beyond screening them to the best of their ability? It's like saying Mcdonalds, the post office, or any large employer should be held accountable for the crimes of their employees.

I googled the most trivial of searches and got dozens of responses, here's a few. In any of these cases, is it really fair to say any of these were Uber's fault? Or Lyft's? I do not think so. Do you?

https://nypost.com/2018/03/05/woman-raped-twice-trying-to-ta...

http://www.sun-sentinel.com/local/broward/davie/fl-sb-davie-...

https://www.prnewswire.com/news-releases/rape-victim-suing-l...

https://www.theindychannel.com/news/local-news/boone-county/...


Whether it's their fault or not, I believe a person should have a right to sue and lose, especially in cases of rape. You are right that Uber/Lyft/etc will likely be found not at fault, but then there is the case where Uber stole a customers medicals records in one of these rape instances [1] in which a lawsuit is more than fair for the victim.

[1] https://www.recode.net/2017/6/7/15754316/uber-executive-indi...


Agreed. My point was merely that this is a great move from the consumer perspective, one that I doubt other companies will follow.


Yeah it is a great move. I think the other companies will follow suit once they have an incident that causes the same level of bad PR that Uber has experienced. Once it starts to cut into their profits they will jump on board, sadly it always comes down to money.


The other thing you can do is reward the companies that lead on these issues with your business so you encourage others to do the same.

It's carrots and sticks. If a company doesn't do what you want, try sticks (punish them for not doing what you want) and carrots (reward those that do so others see that they should do the same).


I think it depends on what happpens. If someone with no prior record commits a crime, it shouldn’t be Uber’s fault... if they get complaints about a guy, but let him keep driving, that would be more of an issue.

Basically, was there something they should have done differently that amounts to negligence.


What's more, ride hailing drivers aren't even employees to begin with in most jurisdictions, and in many cases, the drivers working with one ride hailing company actually also work with the other(s).


https://www.cbsnews.com/news/uber-lyft-drivers-sexual-assaul...

Incidence rate is similar on both platforms.


It happens with all these companies, you just don't hear about it because they aren't companies that those that work in the mainstream media love to hate. Neither of those two companies generate nearly as many pageviews as Uber because Uber touches an order of magnitude more lives.


Why do you think it could be substantively different between Uber and Lyft? It seems incredibly unlikely to me. I see basically no cultural difference between these platforms.


Because of forced arbitration?


It does make me wonder how many ToS I've agreed to with forced arbitration clauses written on page 84 in size six font.

The vast majority of them, at least, all of them wouldn't be surprising.


If you're in the US, then, at a minimum, you've agreed to one for every credit card in your wallet, as well as every other financial account you have.


"A step in the right direction"

What semi-decent human being inside Uber came up with this? How can people still work for this evil company?


> How can people still work for this evil company?

Uber has been doing a lot recently (i.e. as of about mid last year) to fix itself - things like better misconduct-handling process for employees, more frequent background checks for drivers, the implementation of tips, a top-down directive to permanently halt spying-related work in intelligence gathering, cooperating with authorities on the Tempe incident, etc.

Generally speaking, people aren't inherently evil and want to do the right thing. Uber's new leadership now does too. Uber moves fast and I think it's time to re-evaluate whether the data points backing your opinion are outdated.


things like better misconduct-handling process for employees, more frequent background checks for drivers, the implementation of tips,

Still not paying their taxes tho’. There’s a shedload Of Employer’s NI they owe us.


> Still not paying their taxes

Sorry, not familiar with this and googling isn't turning up anything. Is this the IRS's opinion or just your own?


"Employer's NI" means "employer's contribution to national insurance" - a UK tax.

Here's one article: https://www.theguardian.com/technology/2016/oct/28/uber-uk-t...

There are many more.


They pay NIC on their employees, but not their driver partners. The driver partners like all contractors in the UK are responsible for paying their own NI. I don't see why the contracting company is responsible for enforcing tax law for its partners?

Self-employed people in the UK pay class 2 and class 4 NIC. Those that are class 2 pay £2.95/wk on earnings of £6,205+ per year. Those that are class 4 pay 9% on annual profits of from £8,424 to £46,350 per year. They pay 2% on profits over £46,350.


Ah, thanks. I'll read up on that


[flagged]


Oh, in the UK. Thanks, that helps me find more information.

I'm not too familiar with taxation matters, but again, afaik, at the end of the day, it comes down to whether the IRS/HMRC/other countries tax depts are pursuing tax evasion charges, right? Is this actually the case?


> What semi-decent human being inside Uber came up with this?

Susan Fowler advocated for ending forced arbitration as the "the single most important thing a company can do to prove to its employees that it is dedicated to acting ethically, legally, responsibly, and transparently":

https://www.susanjfowler.com/blog/2017/5/20/five-things-tech...

No-forced-arbitration should be the norm.

What other companies have the worst forced arbitration clauses?


> No-forced-arbitration should be the norm.

I'd go further to say that forced arbitration should be illegal/unenforceable without clear evidence informed affirmative consent, and that the offering of services cannot be made conditional on accepting it.

I think a lot of the consent concepts pioneered in the GDPR could be reasonably applied to many consumer-unfriendly practices.


We have a lot of that in finance, like when you get a mortgage -- you have to sign a bunch of separate documents, one for each major concession. Informed consent may help, but it won't solve the root problem of "selling your fundamental rights", which some consider "unconscionable" (legal term for an agreement that is barred by law even if both parties claim they agree to it)


One of the key provisions of the GDPR is that the provider cannot shut you out of the service if you don't give consent, unless the data is vital to the operation of the feature. And needing to use the data for targeted advertising doesn't count.


Because it's not actually evil. Source: my personal experience. :)


Right? The public perception of Uber over the years has been fascinating to me. I worked there for quite a while, and I always had a laugh at how the media would portray something. It was almost always grasping at straws in an attempt to paint Uber evil.

There has been legit bad news about Uber, especially the stuff Susan Fowler talked about. But you know what? We all give money to equally, or often times far more sinister organizations on a daily basis without batting an eye-lash. Why hold Uber more accountable than everyone else?


And most of that negative perception appears to come from Uber's early (not so much, anymore) flouting of what could charitably be described as regulatory capture nonsense.

It basically took them coming in and ignoring the taxi laws to put the lie to the entrenched interests and say "See? The world didn't end after all."


We hold everyone as accountable as we can. Not sure why you think differently.


I'm glad you do, but I don't think that's true for most.

You see constant praise of Lyft, but constant demonization of Uber. Lyft has quite literally done all of the "dirty" business tactics that Uber has. In fact, most of the reason Uber started operating UberX in cities without express permission is because Lyft was already doing so, and Uber noticed that there was no backlash against them for it.

Unfortunately for the tech world, sexual harassment and misogyny is all too common. There are numerous reports about women in tech, and how hard it is and why many of them ultimately leave their careers. This is not something that has only occurred at Uber, and yet, all of the news about it is about Uber. All of the outrage about it is directed at Uber. For some reason, it's fun to hate on Uber, and it always has been.

Let's hold Uber accountable, but let's also hold every other company accountable too. Let's have equal outrage for google, facebook, snapchat, and every other tech company that has done the same stuff. Let's have outrage for Blackwater(or whatever they changed their name to now): a company who literally profits off murder and the destabilization of world order.

I say all of this as someone who experienced a lot of negativity while working for Uber, and I would never work there again. I don't think it is an "evil company" I just think they have chewed up and spit out a lot of folks on the way to the top.


IMO: Uber fucked up tremendously before. It's not doing so now.


A lawyer being paid to mitigate risk for the company using industry best practices? Uber has 6700 employees are you calling them all bad people for choosing to make a living working for one of the premier tech companies? The world isn't black and white where you're on the good side and those people tangentially related to that thing you don't like are bad people.

If we really want to improve on these problems we can't be so self-righteous.


You're tangentially related to your full time job? I think your employer is getting ripped off.

The world is not black and white, but that doesn't mean we can't consider that certain groups have crossed a threshold (or ten) to one side of the spectrum.


> Mr. West said the company struggled with the decision to commit to a safety transparency report for its rides, because he knows that it will be “disturbing” when the actual number of assaults that happen on Uber is announced — in part because of the company’s size and the ease with which customers can report an incident.

This seems like the wrong attitude to have…


Not really, it's perfectly reasonable to fear overreactions from the public. They could even have the best number in the industry, but if the others don't publish and it sounds big, people will freak out.


Regardless of how the numbers compare, if they're bad, shouldn't it be the responsibility of the company to attempt to alleviate the problem (instead of just covering it up)?

I suppose they could technically do both, but not acknowledging problems of substantial magnitude could be considered endangerment. Like the mayor from Jaws.


You're absolutely right! It is beyond any doubt that it is Uber's responsibility to alleviate the problem as best they are able.

It may be possible that there could be some reasonable questions around if a publicity blowup is a helpful part of addressing the problem.


What if the numbers are not bad -- what if riding an Uber is safer than cab/bus/walking, but there's no way to know because the stats on cab/bus/walking are not known, so people wrongly assume they are lower than Uber's?


I just don't think the _possibility_ of a backlash (for defensible numbers, no less) justifies withholding information about personal safety. It's not like we're talking about sales figures, production stats, or other trivial things.


If people misread the numbers, for the reasons we've been talking, their reaction might put them in greater danger than currently.


What makes you think they aren't trying to alleviate the problem AND doing what they can to avoid public overreaction? The two aren't mutually exclusive.


I don't understand how "sexual assault" was part of this. That would fall under criminal law. So even if the victims couldn't sue Uber due to the ridiculous arbitration clause, the person committing the crime could still be arrested and go through the usual criminal justice process. Is that correct?


> That would fall under criminal law. So even if the victims couldn't sue Uber due to the ridiculous arbitration clause, the person committing the crime could still be arrested and go through the usual criminal justice process. Is that correct?

Yep. Uber doesn't want to end up in court because they connected you with a rapist contractor. They'd end up getting sued and losing the emotional appeal to the jury, even if they hadn't been negligent in their process of connecting you with a "safe" driver by doing reasonable background checks.


This is about employment contracts, where the company can indeed be held liable if they didn't take steps to prevent it.


You can sign away your right to trial. Can you sign away your right to not be enslaved? Can you sign away your future right to freedom of religion? After you are charged with a crime can you sign up for cruel and unusual punishment?

"Your honor the defendant signed up for cruel and unusual punishment as well as signing away the right to trial and ability to speak. HERE! is his signature (sorry) it is hard to read..."


I've downvoted you because:

Arbitration applies to civil suits. Criminal suits are not civil suits.


Plea bargains exist. The jails are filled with people that have not gone through trial. (It is over %90). Criminals these days don't see a trial.

You can't be serious or even remotely correct. But yes, use your powerful downvote.


I think the point you're making has some validity, but a plea bargain is a lot more analogous to an "out-of-court" settlement in a civil suit than it is to contractually agreeing to binding arbitration.

That is, I cannot sign away my right to a criminal trial right now, not having committed or been accused of any criminal offense.

Whereas I can sign away my right to a civil trial now, not having yet committed any breach of contract.


What? He's totally correct that arbitration only applies to civil suits. That has nothing to do with plea bargains, which are part of criminal suits, and don't involve someone losing their right to a trial.


Signing away trial, is the signing away trial. Criminal vs civil is irrelevant.


Deciding not to have a trial is not giving up your right to a trial any more than deciding not to vote in an election is giving up your right to vote. Choosing not to exercise a right is not giving up your right.


A system that says "Oh yes, you're entitled to a trial... But if we go to trial you're facing a minimum of eighteen years in person, instead of six months, also you're going to be held in prison anyway for six weeks, hope you don't lose your job" isn't giving you a "right to trial" in any meaningful sense and they know it.


In the context of what we're talking about -- which is agreeing to arbitration to use a service -- plea bargains aren't relevant at _all_.


It is possible that Uber decided to waive forced arbitration for sexual misconduct otherwise risk their whole arbitration policy being called into legality. This action might also indicate that sexual misconduct was systemic enough to risk challenging Uber's forced arbitration policies.


Maybe I don't really get it (I'm not American), but why would victims sue Uber in the first place? It seems to make sense if they sue the sex offender (e.g. driver or passenger).


In America, you have the right to sue anyone for anything at any time. The plaintiff's lawyer may file a motion to dismiss or a judge may dismiss a case, but that doesn't stop anyone from trying to sue in the first place.

That being said, people sue companies because companies have money and companies are more likely to settle so they can go about focusing on their core business (which is not litigation except for patent trolls).

All this boils down to greed regardless what side you favor in this issue. Companies want to keep money they believe if rightfully theirs and individuals want to take money if they think they can get it. The fact that individuals are consistently lionized and companies are consistently is vilified is quite absurd.


I doubt lyft will follow suit. They have the same rate of incidents on their service with the ability to defend themselves as well (less screening, no human support #s, less emergency support systems than Uber).


Apparently they did follow suit, and quickly: https://www.usatoday.com/story/tech/news/2018/05/15/uber-end...


Totally unthinkable in Europe.


These arbitration clauses should be illegal to begin with. You shouldn't have to depend on the largess of a company to have access to the real legal system to resolve disputes with them.

It's screwed up that corporations now have access to something like sovereign immunity [1]: the ability to not be sued in court by their customers or employees unless they consent to the suit.

[1] https://en.wikipedia.org/wiki/Sovereign_immunity#United_Stat...


This is true, mandatory arbitration makes mockery of the legal system.

But... the whole arbitration thing is itself a reaction (in many cases^) to general suckness of the legal system which is primitive, clunky, slow and often more trouble then the trouble it's trying to solve. It's wide open to abuse, and a lot of what we call law is in practice a mature "game" based on abuse of the legal system.

So, yep.. these should be ilegal. But we also need a legal system capable of functional resolution of these disputes fast, without abuses, mutual destruction stalemates and burdensome "costs" including eventualities such as "as an employer, you will always be in labour court no matter what."

That said, sexual harassment in the workplace is an "our vision of society" type of problem. There's a case for giving it it's own courts or public dispute resolution frameworks.

Law really needs to evolve. We are not settling disputes between norman kings and saxon lords any more.

^sometimes it's just naked self interest. Ie, We will win more often in private arbitration, so let's write it into the contract and hope they don't notice or are not in a position to object .


> But... the whole arbitration thing is itself a reaction (in many cases^) to general suckness of the legal system which is primitive, clunky, slow and often more trouble then the trouble it's trying to solve. It's wide open to abuse, and a lot of what we call law is in practice a mature "game" based on abuse of the legal system.

Maybe. It's interesting to note that businesses still prefer court to arbitration in their disputes with each other. https://www.nytimes.com/2008/10/06/business/06arbitrate.html. And business-to-business arbitrations tend to have many of the procedures (and expense) of litigation--lawyers, briefing, hearings, etc. The biggest advantage is that arbitration can be lot faster, because the civil court system is so overloaded with cases.


> And business-to-business arbitrations tend to have many of the procedures (and expense) of litigation--lawyers, briefing, hearings, etc.

One respected scholar, Prof. Tom Stipanowich, suggests that this is because lawyers have incentives to import familiar and expensive procedures from litigation (because they hate to lose and therefore want all the discovery and motion practice that they can get), and arbitrators have incentives not to push back too hard against these lawyers (because lawyers can object to the appointment of an arbitrator, and so arbitrators don't want to develop a reputation among lawyers as "difficult"). [0]

[0] https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1297526


I suspect that's part of it too; in house counsel are surprisingly (or maybe not unsurprisingly) not big on change.


Agreed; it's a variation on "Nobody ever got fired for buying IBM." (I realize I'm dating myself.)


> Law really needs to evolve. We are not settling disputes between norman kings and saxon lords any more.

I agree, but funnily, I think the thing the legal system would evolve into in order to facilitate "functional resolution of these disputes fast, without abuses, mutual destruction stalemates" etc. would end up looking a lot like independent binding arbitration.


> Law really needs to evolve.

When I see a wish for something to 'evolve', I generally can substitute "get society to devote an order of magnitude more resources to," and arrive at a better description of what's actually being wished for. Education needs to evolve, our prison system needs to evolve.

But the signs of evolution are already there. Arbitration is precisely a legal evolution. Private prisons and schools are evolutions of their respective institutions as well. The problem is that they don't solve the resource scarcity that is really wished for.

People generally don't want to settle for an evolved solution, they want someone else to pay so that they can take advantage of the one that's already there that we know does a good job.

The only fix here is to have fewer, but better institutions, and for them to focus their efforts on engineering, not innovation. What's a model for introducing private entities into public spheres that actually drives better outcomes? I would bet that Europe offers many interesting examples to base policy on, but our current political climate seems too caustic to make progress on.


IANAL but

> > Law really needs to evolve.

> When I see a wish for something to 'evolve', I generally can substitute "get society to devote an order of magnitude more resources to," and arrive at a better description of what's actually being wished for.

The thing about Law is that you can just look at what other countries are doing and think about whether that's an improvement over the status quo.

In certain jurisdictions (I'd wager in most developed countries), relationships that are inherently unequal (i.e. in which one party is significantly more vulnerable than the other) -- such as customer vs. company or employee vs. employer -- are protected by rules that are also unequal in nature. The burden of proof usually lies on the stronger party, and certain protections are awarded only to the weaker party.

The underlying principle that companies and people must be treated differently when contracting also applies to other interactions. In certain jurisdictions, EULAs are virtually worthless because you can't assume a reasonable customer would read all the legalese in those documents, let alone understand it. Therefore, even if users click or sign a piece of paper saying "they agree and understand", that acknowledgement is worthless. Instead, they are judged against what you'd expect a "reasonable, average person" to believe constitutes appropriate use.

Again, IANAL so I'm being very vague on details, but my point is that we don't necessarily need "to devote an order of magnitude more resources". And for that matter, even if we did, that doesn't mean it wouldn't be preferable to do so.


  That said, sexual harassment in the workplace is an "our vision of society" type of problem.
Please elaborate.


> Law really needs to evolve.

Or at least updated to protect against modern abuses such as purchased adjudicators and unconscionably forced waivers of a meaningful right to argue for relief before a real court. The federal bit of alternative dispute resolution doctrine responsible for this mockery dates all the way back to the 1920s and desperately is in need of a revisit.


>we also need a legal system capable of functional resolution of these disputes fast, without abuses, mutual destruction stalemates and burdensome "costs"

i think there should be at least a couple additional levels between small claims and full blown court. The lack of those levels is what arbitration mostly trying to fill.

Wrt. the original issue of forced sexual harassment arbitration i guess Uber is just trying to get a good PR while it can - federals, NY, CA and a bunch of other states are coming with legislation outlawing it : https://www.jdsupra.com/legalnews/state-legislatures-tackle-...


> i think there should be at least a couple additional levels between small claims and full blown court. The lack of those levels is what arbitration mostly trying to fill.

I think at this point, in most cases, arbitration is meant to fill the role of

1. keeping PR problems hidden (such as sexual harassment, etc) by keeping them out of open court, and

2. a way of practically eliminating legal liability by stopping class action lawsuits.

I don't think those entities that deploy arbitration on a mass scale really care about the efficiency of the court system at all.


It is insane that the rule of law can be so easily circumvented by something as simple as an EULA and that law makers are totally ambivalent about essentially losing their power.


Is this an US thing?

I always assumed that no contract can be "above" the law.

In fact I just checked the Constitution in my country and it specifically says that no other law can cancel the fact anyone can address justice.


The US has been seriously under-investing in its court system for quite a while and arbitration agreements are part of that. Generally big companies making agreements with each other as equals will also put in arbitration agreements because going through the civil courts is very slow and expensive and they want to find what the resolution of a conflict is right now rather than in N years. But this can become abusive when it's a big company dealing with someone who didn't have lawyers reading the contract.

You see a similar thing with the US criminal system and plea bargains.


Many countries allow binding pre-dispute arbitration agreements if two businesses negotiate a contract with each other and agree to that.

Countries get more skeptical when it's in standard seemingly non-negotiable language from one of the businesses.

Most countries get very skeptical and often ban pre-dispute binding arbitration when one party is an employee or a consumer, especially if the other party drafted the language.

In the last few decades, the US has become the exception to that.

All countries I'm aware of (probably not including your country) will allow consumers and businesses to agree to arbitrate a dispute that has already arisen, with binding effect.


I think the thinking (I'm not defending it) in some circles is that the courts are slow and expensive. Anything that keeps disagreements out of the courts is a win for society. If accidentally run into your mailbox, rather than requiring you to sue me, we can come to an agreement outside the courts. This is much more efficient.


Right, and if the two parties, of their own volition, decide to use arbitration instead of courts, that's a good thing. But it should never, ever be required to sign away your rights for redress in the courts as part of any agreement.


> Right, and if the two parties, of their own volition, decide to use arbitration instead of courts, that's a good thing. But it should never, ever be required to sign away your rights for redress in the courts as part of any agreement.

Or it should always be a separate agreement from any other, that can be signed or not depending on if both parties have the same view of the court system, without affecting other business between them.


>> I always assumed that no contract can be "above" the law.

Law and justice are different things. This is about lawsuits, demanding money as compensation for wrongs. Lawsuits are about settlements and confidential agreements negotiated between parties. Justice is a matter for criminal courts. Justice is about the government punishing people who break laws. That cannot be usurped by contract. Uber employees who break the law are still prosecuted regardless of eulas.


I don't think your explanation properly explains torts. "Criminal" laws cover violations against the State (crimes). Civil laws are violations against individuals (torts).

Torts are absolutely part of the Justice system. https://en.wikipedia.org/wiki/Tort


We can debate minutia of legal doctrine forever. Torts don't require civil laws, only civil wrongs. Whether or not they are part of the "justice system" is also different than the concept of "justice".


Good to know. I never made the distinction myself. Then again I do wonder, isn't sexual assault/harassment a matter for criminal courts? Who decides?


It is, however, someone not super well versed in contract law might assume that this arbitration clause covers that as well, and feel they would be unable to go to the police, too.


The assault and the assaulter are a criminal matter for the courts. Suing Uber for damages because the assaulter was an agent of theirs at the time (probably for enabling the assault with bad policy or something else related to the company) is a matter for arbitration.


My simple logic then says we should sue those who bought Volkswagen, VW itself just had a "bad policy".

My question still stands though, who decides it's just bad policy and it's not in fact hiding/helping/aiding the criminal?


The State can prosecute a case if someone is accused of "aiding and abetting" another's criminal act, or of "conspiring" to commit the crime.

https://en.wikipedia.org/wiki/Aiding_and_abetting

https://en.wikipedia.org/wiki/Conspiracy


You are correct, no contract can be "above" the law. However, now that you "signed" a EULA, the onus will be much more on you proving this is illegal, costing you time and money, and the person enforcing the EULA has a legal team. So they knowingly write these contracts knowing they are unenforable, and get away with it most of the time.


There is no onus to prove anything. You go to court as usual and the arbitration clauses is instantly dismissed if it's ever brought up during the trial. That's how it works in countries that don't allow arbitration.


Also, I believe the rules and procedures in binding arbitration can be different than in the court system, which can further stack the deck against the consumer.

I have a friend who lost a real estate arbitration case because of that, and got no compensation for serious structural issues that weren't disclosed and were caused by a remodel undertaken by the previous owner.


Somewhat. An EULA for example in germany is basically worth nothing if you don't provide a short and concise summary of any out-of-the-ordinary clauses in it.

And contracts cannot generally be above the law in any reasonably jurisdiction. The law enables contracts to function in the first place and also governs what they can and cannot do.


No contract can be above the law in the United States either.

However, there are laws that legalize and codify private arbitration and how those work. In that regard, the contracts operate within the law.


The rule of law isn't circumvented by EULAs; if the law prohibited the terms, they would be invalid. The rule of law supports the EULAs.

Now, you may think that the law is bad, but that's different from this being a failure of the rule of law; it's success in the rule of (bad) law.


We should add something to an EULA that says something to the effect that if someone is a Police officer they can never arrest the creator or community of a software or if they are a lawyer/judge they can never judge. It do be interesting to see how the govt reacts to that.


As an example, we've had cases where judges/clerks refuse to do their jobs (certify marriages) based on their personal choices. The institution provides a substitute, possibly terminating the employment of the individual who chooses to not do their job to minimum required standards.


> and that law makers are totally ambivalent about essentially losing their power.

That "loss of power" may be welcomed by many lawmakers, many of whom are ideologically committed to "starving the [state]." [1]

The current Chief Justice of the Supreme Court had a hand in designing and implementing this arbitration strategy, before he was appointed to the court. Afterwards he supported it in his opinions. [2]

The current head of the Consumer Finance Protection Bureau is actively trying to undermine its mission [3], and wants to shift its focus away from consumer protection to "business costs." [4]

[1] https://en.wikipedia.org/wiki/Starve_the_beast

[2] https://www.nytimes.com/2015/11/01/business/dealbook/arbitra...

[3] http://www.latimes.com/business/lazarus/la-fi-lazarus-mulvan...

[4] https://www.wsj.com/articles/mulvaney-to-prioritize-business...


I’m out.


I found your explanation a lot more weird and a lot less simpler than the parent.


One of the things that makes conspiracy theories so appealing is their simplicity.


> One of the things that makes conspiracy theories so appealing is their simplicity.

What exactly is the conspiracy theory here?


"Legalizing forced arbitration is a right-wing conspiracy to reduce the scale of government".


That's not the conspiracy. In fact there's no conspiracy needed; just a belief that private individuals (including companies) are better at coordinating than the state is. And it's not even a controversial belief. What makes all the difference is how much of an imbalance of power between contracting parties you're prepared to accept before you think the state needs to intervene. That's a sliding scale, not a binary distinction.


The idea that some people support policies they openly claim to support falls pretty far short of a conspiracy theory.


The idea is more like, "conservatives intentionally restrict regulation of businesses, deliberately shifting the burden onto the judicial system, which they also starve of resources, such that the only manageable solution is to allow mandatory arbitration". The assertion is basically that all of these consequences were not only intended, but planned.

Most of the contacts, licenses, agreements, terms and conditions, etc. that entail mandatory arbitration exist in the first place as a response to well-intended laws, regulations and judicial precedents that come from pro-consumer or pro-employee motivations. If you're an ideologically consistent conservative, you probably want to just get rid of those laws and regulations, at which point you wouldn't need a mandatory arbitration clause or, indeed, the entire remainder of the massive legal document.

I don't know any conservatives who say, "yes, in order to use consumer software, you should have to agree to a ten-page document that says you shouldn't use it to run a nuclear reactor, but only if we put a clause in there about mandatory arbitration!" I think the conservatives would rather not have the red tape in the first place.


I find it very telling when someone refers to "pro employee/pro consumer rules" as "red tape".


Ah, you're trying to "gotcha!" me. Just being able to understand and explain a viewpoint doesn't entail agreeing with it. Unlike seemingly everyone else in this conversation, I don't feel qualified to have an informed opinion on this.

Of course, if you keep tut-tutting about it being "very telling" when someone is capable of explaining opposing viewpoints, then you save yourself the trouble of ever having to engage with those viewpoints and your bubble is intact. Congratulations on that. I commend you on your emotional and intellectual maturity.

God, HN has gone to shit.


Absolutely nowhere in your post did you mention once that you were merely trying to "explain" a viewpoint, and not that it was your viewpoint in the discussion.

And I'm sure you've demonstrated considerable emotional maturity disparaging consumer and employee rights, while complaining about comments on the internet.


My viewpoint in the discussion is that mandatory arbitration is an attempt to work around an expensive and overtaxed court system. Conservatives would probably prefer that companies have fewer legal liabilities in the first place, and liberals would probably prefer that most of the burden of protecting consumers and employees be handled by more explicit and comprehensive regulations up front so that people didn’t have to resort to litigation. Since we live in a democracy, we ended up with a compromise that leaves everyone unhappy.

Since it’s obvious why liberals are unhappy, the only piece I needed to add was an explanation of why conservatives are unhappy with this compromise.

I shouldn’t have to restate the entire context of a threaded conversation every single time I respond to it, but apparently I do or otherwise people are going to think I’m some type of conservative and insult me over it. I’m not a conservative, but I also don’t think insulting people over political disagreements is acceptable in the first place.


> "Legalizing forced arbitration is a right-wing conspiracy to reduce the scale of government".

I figured that's what you'd say. I think you misunderstand the meaning and connotations of the term "conspiracy theory." It doesn't mean, literally, "a theory that a group is conspiring." A true conspiracy theory, at its core, is an outrageous and unbelievable idea that gets elaborated on to an unreasonable degree. Think UFO coverups and black helicopters of the New World Order.

It's not outragious and unreasonable to think "the right wing" is acting together to "reduce the scale of government" or support "business friendly" polices like binding arbitration at the expense of consumers. They literally campaign, in public, on those and similar ideas.


There’s a spectrum of conspiracy theories, and not all of them are as absurd as the ones that literally involve UFO’s and the like. Yes, there is an ideological element to this, but there’s also a very pedestrian element of an overworked court and legal system that is more than willing to accept compromises that reduce its already-crushing workload, and dismissing that element because it’s “simpler” to just blame Republicans is the same kind of oversimplification that makes outright conspiracy theories appeal to people. It’s a lot easier to point to a group of people and say “they did this!” than to actually grasp all the complications of how complex real-world systems function and malfunction.


Are you saying you don't see any connection between decades of leaders who believe the government should have its funding cut and be less involved in business, and the fact that the government is so starved for resources that it can scarcely afford to get involved in businesses' disputes? There appears to be a pretty straightforward cause-and-effect relationship there.


No, that's not what I'm saying at all. I'm just saying there are more factors than that and that things like unintended consequences and complicated feedback loops exist and have real consequences even though they're not as "straightforward" or "simple" as just blaming people you disagree with.


> even though they're not as "straightforward" or "simple" as just blaming people you disagree with.

You're getting way, way off track. This whole subthread started when someone asked why lawmakers would "cede power" to arbitrators, and the response was maybe they don't mind, with examples where they sought reduced power for the government. You're the one who seems intent on making this about blaming them.


I’m kind of doing a bad job here because the GP of the comment I was replying to bailed out and replaced his whole comment with something dismissive, so we can’t actually see the counterpoint I was trying to defend. Honestly, this thread (and HN in total) is increasingly a lost cause, so let’s just move on with our respective lives.


> I’m kind of doing a bad job here because the GP of the comment I was replying to bailed out and replaced his whole comment with something dismissive, so we can’t actually see the counterpoint I was trying to defend.

That point is preserved as a quotation in one of the other replies, and it seemed kinda facile.

> Honestly, this thread (and HN in total) is increasingly a lost cause

This subthread certainly wasn't good, but that happens when people double down on bad points, like the "conspiracy theory" one.


It was a badly expressed point, but it's not a bad one.

I'm not sure what's facile about supposing that lawmakers are willing to compromise on reducing load on the court system. I don't understand how someone would find that motivation "more weird" than thinking that a controlling share of lawmakers are "ideologically committed" to bringing about the exact status quo we find ourselves in. If anything, I find your explanation to be the facile one. Simple explanations are emotionally appealing; simple explanations that scapegoat some disliked group of people are especially emotionally appealing.

Your particular explanation has two flaws, however:

(a) If conservatives really had their way, this isn't where we would have ended up. This is a compromise, or at least a counter-response to the state of affairs where there are so many implied obligations, warranties, and disclosures--a state of affairs that conservatives don't seem to support in the first place--that people need to sign or agree to 20-page legal documents as often as they do throughout the course of their lives.

A couple concrete examples:

* Most commercial software EULAs require you to agree that not to use the software to run nuclear reactors, because if that wasn't in there, and you used it to run a nuclear reactor, and it crashed, you and everyone who got radiation poisoning would take the software company to court and that would be a stupid waste of time, so to countervent that, we have EULAs that specifically call out that use case as not supported.

* Every apartment lease I have signed has a clause that forbids me from subletting the apartment, because otherwise, I would have an implied legal right to sublet my apartment. If that implied legal right didn't exist, that would be one fewer clause that I would have to read and initial when I rented an apartment.

Conservatives aren't and weren't the ones imposing those obligations in the first place. But, now that they exist, there are very long legal documents that people have to agree to. And, as it happens, when there's a dispute over whether either side has held up their end of a long legal document, it ends up in court and everything is expensive. Arbitration is a reaction to that, and since US law tends to operate in a "permitted unless explicitly prohibited" way, there wasn't necessarily any particular ideological or political action required to make mandatory arbitration possible in the first place (although if you know of any, please share).

(b) Given that this is a compromise, why is it a relatively stable compromise? Why doesn't it just get overturned or outlawed in every US state where Democrats control the state government? Two of those states are Delaware and California, for example, and since a lot of companies operate in California and incorporate in Delaware, the laws of those two states would have an outsized impact on the rest of the country.

I can think of one reasonable explanation: Democratic lawmakers in these states understand that the court system doesn't even have the capacity to handle all the litigation that it would need to handle without mandatory arbitration in place, so they maintain the shitty compromise and try to gradually angle for a more sustainable solution to the problem.

(Since we're not discussing conspiracy theories, I'm not going to touch the notion that Delaware and California Democrats are secretly corporatist "starve-the-beast" conservatives and that the two-party system is a sham.)


> What a weird take this is. There's no need to look for monsters under the bed. The much simpler explanation is that arbitration interests are aligned between the State and businesses -- lower caseload for an already overworked court system, and lower costs for business. Since those are the groups with power in the situation, it is only logical that they would choose arbitration.

These two explanations aren't even contradictory unless the state is motivated by profit, which it clearly isn't, so your comment seems like a bit of a red herring.

Your comment makes an implicit assumption that the goal of the state ought to be maximizing its revenue to expenses ratio. Some (e.g., the writers of the US constitution and the bill of rights) believe the state's interests ought to be aligned with those of the underlying population.

When the goal of the state flips from "profit" to "maximize general welfare", it's no longer obvious that "decreasing court expenses" at the expense of "eroding consumer protections" is necessarily in the state's best interest.


The goal of the state doesn't have to be the profit of the state itself. It could be that those in charge of the government would have as their aim the profits of private companies, in which case lowering taxes on those companies would fall in line with that aim.


The counterargument is that you are welcome not to do business with companies that require you to accept such a condition, just as you are welcome not to accept a job with such a condition. Unemployment rates are about as low as they ever get right now; work somewhere else. Freedom means that you can voluntarily enter into arrangements that others think are a bad idea. Is it worth a little extra pay to accept that condition? A lot of extra pay? The market will figure it out. Banning the practice, on the other hand, removes a bit of freedom.

Of course, that argument is largely baloney, but it's not straight up insane.


"Is it worth a little extra pay to accept that condition? A lot of extra pay? The market will figure it out."

The people most of these clauses are forced upon usually have the least amount of bargaining power. Thus, they're usually not getting anything extra (unless you count just getting or keeping the job in the first place as extra).


In this case, aren't we discussing Uber passengers? Not people out in a powerless position at the outset.


I wouldn't agree with that. But the article is about employees.


> The counterargument is that you are welcome not to do business with companies that require you to accept such a condition

While you are right, it's not reasonable for any person to assume they are waiving their rights to legal action if you are raped by using a transportation service for merely clicking on 'Accept' to the EULA.


>they are waiving their rights to legal action

The criminal matter can still be reported and dealt with the normal way, no? Isn't what is being waived is suing a third party for employing the accused (specifically, suing for negligence in employing the accused when they shouldn't have)?


Except Uber executives have interfered in rape incidents with their drivers in the past, this should not be forced into arbitration. [1] In most cases I feel the company will be found not at fault, but feel it's the customers right to sue and lose.

[1] https://www.recode.net/2017/6/7/15754316/uber-executive-indi...


That's a different crime (obstruction of justice) and a different tort (Uber office/management vs victim, not driver vs victim), not covered by the EULA.


> The counterargument is that you are welcome not to do business with companies (...) Of course, that argument is largely baloney, but it's not straight up insane.

This is the idea of "freedom" that the right wing loves pushing, that all things that matter can be discussed as one-to-one interactions.

The argument is baloney because if all companies do it you don't really have a choice. You won't see this fact if you always think in terms of one-to-one interactions.

"Freedom" as one-to-one interactions is structurally favorable to large corporations.


I’m out.


Of the very few things in life that are simple and straightforward, the matter of which things people actually choose in their lives are not one of them.

For instance, you could just as easily chosen to write a completely different comment. But alas, you did not.


If every company does it then it's not just about cell phone or whatever, is it? In particular, you would have no employment.


For the record, GP post was edited and is not what I responded to. Originally it was the "no one is holding a gun to your head" argument. Because as we know, guns are the only thing in the world capable of constraining freedom /s


> I’m out.

So do you admit you're wrong to the degree you think your comments shouldn't be seen? Or can you just not stand the downvotes?

I think withdrawing and mass deleting half of a conversation is kinda bad form.


Yes, he admits. Go through his comment history and it's nothing but unsubstantive and/or snarky remarks. I wish there was a way to detect these people at a glance so that I'd have saved myself the time. Maybe a metric like karma per year? Very gameable, but maybe better than nothing? This guy's account is 7 years old and has 3k karma. Or maybe karma per comment.


> Freedom means that you can voluntarily enter into arrangements that others think are a bad idea.

Ah yes, the cherished freedom to "choose" to be scammed and taken advantage of by others. It's really the most important of all our freedoms. /s


Would freedom be allowing for gambling or banning gambling?

I think the bigger problem is that people don't understand what they are signing. To me the real issue is the lack of informed consent in these contracts, as people don't understand the consequences of an arbitration agreement. This also results in the few people who do having no market power left to enact any change.


> Would freedom be allowing for gambling or banning gambling?

It's not so binary. You could allow for regulated gambling that mitigates the social problems, but ban unregulated gambling.

> To me the real issue is the lack of informed consent in these contracts, as people don't understand the consequences of an arbitration agreement.

I agree that's part of the issue, but not the "real" issue. For example: if you desperately need a job and someone puts an all-or-nothing employment contract with an arbitration clause in front of you, you'll sign even if you fully understand that arbitration is a bad deal for you.

The real issue is that these arbitration clauses can be put in a non-negotiable, all-or-nothing contract by the more powerful and savvy party to the determent of the weaker one.


>The real issue is that these arbitration clauses can be put in a non-negotiable, all-or-nothing contract by the more powerful and savvy party to the determent of the weaker one.

In this case, given the difference in power between the two entities, I think the issue is still consent not being valid. Arbitration is one bad thing to stick in, but there are many other clauses that a person would normally not agree to but who are coerced by the situation to agree to. To me the issue is still a matter of given consent when in a coercive interaction where the parties involved has significant power differences.


what about sports like mma, nfl that cause brain damage.


Forced arbitration is beyond illegal, it is illogical. The entire basis of a contract is that it's a meeting of minds. If a written agreement purports that one party to it has the power to unilaterally interpret it, then its very words lack all independent meaning. And without meaning, there is no actual contract!


purports that one party to it has the power to unilaterally interpret it

That's not what it does. I think arbitration (except between companies) is dangerous, but arbitration doesn't mean one party decides, but a third-party (arbitrator).


That "third party" arbitrator is effectively an agent of one party.

There isn't a vibrant market for arbitrators. A consumer-oriented one clearly wouldn't be approved by the industry board, and so couldn't be chosen even if the consumer would pay for it. It's a dog and pony show to conjure a purportedly neutral third party, but that "third party's" ongoing business relies on delivering the company's desired outcome. Hence, agent.

Furthermore, the deeper repudiation of meaning is the assertion that the arbitrator's decision is exempt from review by a proper court.


That's true neither in theory or in practice, and the win stats bear it out. Consumers are MORE likely to win in arbitration, not less, and the data do not show systemic bias of AAA or JAMS even for the largest customers.


But wait, the devil is in the details. What/where are the actual stats?

Winning isn't actually binary. A trivial example is an award of $1 to the consumer, technically a win to the consumer, but clearly a loss.

The far more meaningful statistic would be the magnitude of the awards, especially as compared to awards by courts.

I suspect mindslight's argument may well be supported by the statistics showing a reduction in costs to big firms at the hands of arbitrators, though I admit that's just speculation.

Also, you mentioned consumers. What about employees versus employers, tiny business versus large business, or other large power disparities.


Current stats sure - the arbitration industry realizes it's still on shaky ground (hence regrouping with 30 day opt out clauses etc). The incentives are still aligned the way I've described, so that's how we'd expect things to progress once its desired regime is more established.


The incentives are aligned that way if you make certain assumptions that laymen make often, but they aren't that way in real life despite the fact that arbitration is VERY established. Your narrative is built on a bad understanding of the industry (and not comparing it with a real alternative, which has lots of problems of its own).


Sure, but this doesn't change the illogic of a document that purports to be mutual terms of a contract, yet rejects its being interpreted by the age old institution that mediates disputes - the courts.

But if you want to talk about practical evidence, then why exactly do companies have to trick consumers into "agreeing" to future mandatory arbitration?! If arbitration is truly beneficial for both parties, then a consumers can always choose to enter into binding arbitration after a dispute arises!


Why can't I agree to an alternative dispute mechanism? Private arbitration is age-old as well. If I as a consumer want to choose something other than the courts (which, as a law school grad, I actually do), who are you to reduce my autonomy by telling me that I can't contract for that?

>But if you want to talk about practical evidence, then why exactly do companies have to trick consumers into "agreeing" to future mandatory arbitration?! If arbitration is truly beneficial for both parties, then a consumers can always choose to enter into binding arbitration after a dispute arises!

#1 - Contract terms are not a "trick." Making arbitration mandatory across the board is far better for the company than having it decided case-by-case, because they can estimate costs better.

#2 - Consumers don't know anything about arbitration, and much of what they think they know isn't true. Are you going to argue that consumers are weighing real cost and benefit? You're the one whose position is based on the idea that consumers aren't smart enough to avoid this terrible idea (that isn't).


The right to contract is not unlimited, especially with regards to self-contradiction. Hence not being able to sell yourself into slavery. Even these arbitration clauses recognize they'd be blatantly unenforceable if they didn't carve out exceptions for eg determining their own validity in a real court.

Re #1 - a clause that allows one to completely opt out of it, but only within 30 days after opening an account, by snail mailing (an onerous communication method compared to the customary method of the relationship) to a specific address buried in pages of terms. That's basically purpose-designed to take advantage of consumer uninformedness/laziness!

Re #2 - there's a big difference between how much effort will be spent when opening an account, versus looking into a problem.

Your general argument is casually resting on these common falsehoods that consumers proactively read tens of pages of terms, that interpreting dense legalese (including the context of relevant case law) is straightforward to the average consumer, and that companies aren't just continually attacking consumers with garbage terms [0] just because they can (most likely their legal staff justifying their own paycheck).

That's not surprising - it is after all how the status quo is perpetuated, and how attorneys gatekeep access to the legal system (thus undermining equal protection). It's just not right, in the sense of morality or even correctness.

[0] http://www.law.harvard.edu/programs/olin_center/fellows_pape...


[deleted]


Nevermind thinking ahead!


Except it's not new, and the stats show it's not what you think it is. You're not thinking ahead -- you're making assumptions based on a lack of knowledge of a complex field you know little about, and consequently reality doesn't look like your assumptions.


> you're making assumptions based on a lack of knowledge of a complex field you know little about

Well, to even form a contract, both parties have to have an understanding of what exactly is being agreed to. So it's more than a bit disingenuous to claim that the real details are just too complex for a non-insider to have an opinion.

And BTW, the trend is new enough that individual companies are still shifting between having said clauses and not after getting slapped down (eg CapitalOne), and tinkering with said clauses in an attempt to make them hold up better (eg adding a 30 day opt out period from account opening).


> both parties have to have an understanding of what exactly is being agreed to

An understanding that they will be undergoing arbitration is enough to satisfy the "meeting of the minds" element, the fact that a lot of people have antifactual opinions about arbitration notwithstanding.

>And BTW, the trend is new enough that individual companies are still shifting between having said clauses and not after getting slapped down (eg CapitalOne), and tinkering with said clauses in an attempt to make them hold up better (eg adding a 30 day opt out period from account opening).

Yes, and this is primarily because of silly attacks on arbitration, and not because of actual facts. Judges are really bad at looking at facts -- this is one more area where arbitration tends to do far better. The average person loves rent control, too, but that doesn't stop them from being provably wrong.


One of the ways forced arbitration benefits companies is that the individual being subjected to it knows their complaint will be decided by a kangaroo court.

They also know that any award they might receive will be smaller, and that if they do not win the case, the process will be costly and without appeal.

If the win rates remain unchanged after filtering out most of the consumer/employee complainants who don't have a slam dunk case, that is likely because there is systemic bias.


But awards aren't smaller, it's LESS costly, and it's faster.

People make the mistake of assuming that the advantage for companies has to be in the trial results, when the fact is that there's plenty of advantage of paying claimants at a higher rate as long as you're getting it done faster with fewer billable hours to your attorneys.


I was an arbitrator before I was a lawyer. I was not an agent of either party, and the consumer won more frequently than did the business.

Based on professional observation, consumers/customers (meaning individuals) generally win arbitration cases against businesses. Employees tend to lose. Haven't seen enough B2B arbitration cases to comment on any sort of pattern.


The problem is that the third party is often picked, to some degree, by one of the parties, and there is a perverse incentive between the third party and the party that is picking them.


That's why I think they're dangerous, as I wrote. But they're not illogical.


Similarly forcing people to opt out of potential class-action lawsuits. How thats even legal is beyond me.


I've never actually heard of an arbitration clause surviving in court though, do you have any examples of a pitched battle being fought over this?



Off-topic question: what's HN's stance on paywalls? I've noticed a growing number of paywalled articles from various media outlets, and I'm not entirely sure people are even reading them before commenting here.



Thanks!


I rarely read the article these days because the comments can give you context the article doesn't


People gotta eat.


It is entirely unconscionable that this was a thing to begin with. There is no justification whatsoever for compelling arbitration on these people, other than pure evil.




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