Hi kids, I have to get this off my chest.
This antiquated, really Lochner-era notion that corporate propagandists, their counsel and some judges push -- that adhesion arbitration agreements in documents handed out when you buy a computer, phone, cable service or other functional aspect of daily life are somehow voluntary and the product of arms length negotiation -- is belied by our own experience and those of your friends, relatives, and pretty much everyone you know.
Even the Spencinator knows that you can't meaningfully "check out" of the Atlantis in the Bahamas after you've spent months planning a trip when you arrive from the Midwest because of some adhesion language handed to you along with a map of the resort and your room key -- we all know this.
Yet this idealized, "natural law" approach to analyzing these issues persist -- sheesh, Oliver Wendell Holmes back in the 1800s knew this is not how human beings act or how the law operates:
Holmes therefore brought himself into constant conflict with scholars who believed that legal duties rested upon "natural law," a moral order of the kind invoked by Christian theologians and other philosophic idealists. He believed instead "that men make their own laws; that these laws do not flow from some mysterious omnipresence in the sky, and that judges are not independent mouthpieces of the infinite....":49 "The common law is not a brooding omnipresence in the sky...." Rather than a set of abstract, rational, mathematical, or in any way unworldly set of principles, Holmes said that, "[T]he prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.":458Anyhoo, this is just plain stupid:
In short, Encore and rival debt buyers are using the courts to sue consumers and collect debt, then preventing those same consumers from using the courts to challenge the companies’ tactics. Consumer lawyers said this strategy was the legal equivalent of debt collectors having their cake and eating it, too.
The use of arbitration by the companies is the latest frontier in a legal strategy orchestrated by corporations in recent years. By inserting arbitration clauses into the fine print of consumer contracts, they have found a way to block access to the courts and ban class-action lawsuits, the only realistic way to bring a case against a deep-pocketed corporation.
Who would endorse such unfairness in our legal system, using outdated and patently unfair artificial constructs?
We can do better, peoples.
Carry on, Christmas revelers!