The reasoning is that the contract is a bargained document between the parties, and if a party does not like the contract, they are not forced to enter it.
If what you get in return for the contract is not sufficient to join the contract, then you don't execute it.
This is efficient so long as the bargaining power in the market is not highly asymmetrical. The US market is not ideal, but I'm not entirely certain arbitration provisions are a bad idea, regardless.
One reason arbitration provisions might be good, is because its a way for companies to opt out of the hunting territory of the trial lawyers association. The lawyers are another powerful group that has created many kinds of nuisance lawsuits that act as a private tax on corporations in the US. If the private tax is unavoidable, the cost is passed on as a price increase to consumers.
The lack of arbitration clause could manifest itself as increased cost of goods in the current climate, because of the huge cost of nuisance class actions, etc.
Just a perspective.
Consumers have not been taught how to properly negotiate and enter contracts, and companies creating the arbitration clauses almost always have the power to push back on changes until the consumer relents.
I wash shocked when I ordered a test Dell Ubuntu machine, took the time to read the EULA/TOS, and was appaled at their terms, which included waiving of constitutional right to a jury!
The real problem, the dark discussion we need to be having, is about the inequality of access to redress of greivance via the law. We live in a society that has created a system in which you must have money to pursue legal recourse, and in a world of increasing inequality, the fact is the port and middle class are increasingly railroaded by arbitration clauses and similar legalese understood by only the people who wrote it.
I'm not advocating for restriction of private terms of contract, but corporations are abusing their power in the equation to the detriment of the people, so lets not lose sight of the reality, as opposed to the theoritical situation lobbyists would have us believe.
As a proposed solution, I think contract law should be taught in highschool as core cirriculum. I have even recently added a section in my documentation for sysadmins to address the reading of eulas/tos, and signing of contracts.
There are also other reasons that a clause might be legally enforceable in the general case, but still struck down in a particular suit given the context of the specific contract in question.
> We live in a society that has created a system in which you must have money to pursue legal recourse
Depends on what you mean by 'legal recourse'. You're welcome to, for example, go to small-claims court and have both sides represent themselves[0]. That's as close to free as you can get.
The problem is that legal recourse for large matters must cost money. You wouldn't want to go to trial for a large civil suit without a lawyer, because there's too much at stake for you to risk it by representing yourself. But lawyers cost money, because they have the opportunity costs of their own time to worry about.
And it's not like you can't get decent representation for free. You can get a lawyer on contingency, which basically means that you have to convince them that your case is solid enough that you're likely to win. In that case, you don't have to pay much (or anything) up-front.
[0] In some states, you cannot have a lawyer represent you in small-claims court - both sides must represent themselves.
If the term is indeed material to the consumer, and if it is not oppressive to the company for them to give it, then at least one competitor will offer it, in order to win some portion of the market away from incumbents.
This usually does not happen with contract terms, because consumers do not look at the terms, nor usually do they care about the terms.
Legal and contractual bloat is a real problem.
Did you negotiate your ISP contract ? you can't negotiate if every ISP have the same policies.
An asymmetrical legal and financial balance isn't even the real problem, it's that contracts from large companies are on paper non-negotiable with the real negotiation occurring is in court when the terms of the contract are contested. We already have some protections for people who agree to take-it-or-leave-it contracts but, to me, it's not terribly clear whether those protections extend to private arbitrators who might blindly rule on the letter of the contract.
The potential harm related to Internet access does not seem very high. It's fair to balance that against the cost of frivolous litigation. The market can sort this one out.
Are they trying to quash class-action suits or what? I haven't got a clue, someone more familiar with the subject should clue us all in.
https://en.wikipedia.org/wiki/AT%26T_Mobility_LLC_v._Concepc...
Also, you might want to use a non-mobile link.
"Serious question- Would this(a class action suit for screwing customers) have been possible if Google had put in their contract that all parties waive their right to a class action? Many companies do this now- Microsoft's xbox live, for example not only forces you to forfeit any class action lawsuits, but at the time I stopped using their services, I believe they also required meditation with a mediator to be chosen by Microsoft. I sold my xbox 360 and never looked back.
edit- I also remember specifically Microsoft releasing a TOU update just days after, if not the day of, the ruling allowing companies to do this came down."
To answer your question - yes, you could legally have someone sign a contract waiving his right to sue you for shooting him. However, the contract would be unenforceable, and he could sue you (for both shooting him and potentially for the contract - IIRC, that depends on the state). One of the things that became abundantly clear in contract law is that you can put essentially anything into a contract, legally. It's enforcement of said contract that the legal system gets involved in.
I understand I can write any nonsense and sign it, probably because of freedom of expression or something. My point was whether that contract would be enforceable. If such a thing wasn't enforceable Google and others wouldn't be putting it in their contracts.
I figured, so I edited in (about 30 seconds later, not sure if you fell in that time gap): "Assuming he doesn't die and it's him, not the government, that prosecutes/sues me."
5 to 4 decision, along the same lines as you'd assume.
Seems like the only way to deal with this crap as there's no incentive for corporations not to force customers into binding arbitration. If I was still running a large consumer focused corporation I'd insist on it as well.
Because it prevents creating a class action to group together impacted customers. Individually it may not be worth it for a customer to proceed with a claim. En masse, there is an economy of scale.
Now I'm not in favor of frivolous lawsuits and these clauses are clearly intended as a defend against them, but if the response to that problem shouldn't be binding arbitration everywhere. It should be tort reform.
Comparing Google's to Comcast in this situation doesn't really feel right.
I'd also comment on their mutually horrible customer service, but at least Comcast HAS people you can call, even if they're lousy.
