A reader comments about private justice:
Seems to me since I can’t sign away my right to say freedom (sell myself into slavery) I shouldn’t be able to sign that right away. Simple law to remove mandatory arbitration. It can be a better option and keep court costs down, but it is abusively used right now.
Seems to me, too, but evidently not to SCOTUS. The Arent Fox website has some convenient summaries of two of the relevant decisions from 2013:
… on June 20, 2013, the Court decided American Express Co. v. Italian Colors Restaurant, holding that class action waivers in dispute resolution clauses are applicable to federal statutory claims. Specifically, the Court held that a waiver of class arbitration cannot be defeated under the Federal Arbitration Act (FAA) on the basis that the individual arbitration of claims is too expensive for any individual claimant in light of the small size of the individual claims (known as the “effective vindication” theory). The Court extended its reasoning from its earlier decision in AT&T Mobility v. Concepcion, which allowed for class action waivers in arbitration agreements at the state level.
… on June 10, 2013, the Court decided Oxford Health Plans LLC v. Sutter, which addressed the questions of whether — and if so, how — courts may review an arbitrator’s determination that the parties intended to authorize the use of class proceedings, even where the arbitration agreement does not expressly address class arbitration. Here, the Court upheld the lower court’s decision to maintain the arbitrator’s ruling, determining that the overarching test for Section 10(a)(4) challenges is not whether the arbitrator’s decision was correct or erroneous, but whether the arbitrator was “arguably construing” the contract.
A libertarian would argue that restricting access to arbitration is an unreasonable intrusion into private contracts, I suspect. My response is that today’s reality is that no one reads all the various contracts to which they are party, and many of them are not within the competency or time constraints of the average citizen (I’ve noted that libertarians and self-sufficiency nuts don’t seem to have a sense of time, but, being ideological nuts, they assume everyone is like them and fixated on the subject of their fascination). A reasonable compromise might be to permit arbitration when both parties indicate in the initial contract that they are explicitly aware of the provision by initialing the provision, and that neither party may deny a contract based on the removal of such a provision.
Would it ever happen? Nyah.
