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Contracts Against Americans
It is time to shine the light on the big, affluent corporate lawyers who anonymously create those non-competitive fine print contracts we all have to sign to purchase goods and services.
It’s time for an open letter to these Darth Vaders of business law who have destroyed our freedom of contract and built a new road to serfdom made of corporate cement.
Dear Attorneys for Contract Incarceration:
Remember when you were at law school studying contracts? Your professor pressed you socratically to understand Hadley vs. Baxendale et al. You spent just one or two classes on what are called "contracts of adhesion"—those fine print one-sided contracts that only make up 99% of all the contracts we’ll ever sign.
There they are—page after page exuding the silent message of "take it or leave it." If you "leave it", then you must cross the street to a competitor—an insurance company, credit card firm, bank, auto dealer, hospital, realtor, airline, student loan company or cell phone company, awaiting you is the same fine-print contract designed to nail you to the mast. Then there are the shrink-wrap software contracts you can't even see before you buy.
If your contracts professor bothered to explain why so little course time is spent on these standard form contracts involving trillions of dollars in annual sales, he/she might have used the French phrase—"fait accompli." After all, the consumer signed or acquiesced in some way. That met the basic principle of a binding contract, say the courts (with a rare exception now and then) which is a meeting of the minds between the willing seller and the willing buyer.
Discussion over! As a shopper, prepare for the daily coercive harmony.
Imagine all the times you’ve "met the minds" of Bank of America, Metropolitan, Aetna, General Motors, Wal-Mart, American Express, AT&T, Sallie Mae, U.S. Air and your favorite time-sharing company for that vacation trip to Antigua. What a myth!
In this legal fiction land, the law presumes that you’ve read the fine print and understood it. Inscrutability is no defense. It doesn’t matter that law professors, Supreme Court Chief Justice Roberts and your partners admit to not reading the dense legalese when they shop. Why waste their time? They can’t get out of contractual prison anymore than you can. But you make zillions figuring out how to lock millions of Americans into one-side anti-consumer contracts.
You misuse your intellect to create a modern contract straitjacket that gets tighter year by year. Your innovations are enforced by status-quo judges, credit ratings, credit scores and the absence of any competition over contracts between companies in the same industry.
The straitjacket is made of figurative steel fibers composed of enforceable words. Here is a partial list of your inventions which Harvard Law Professor Elizabeth Warren aptly calls "mice type" the equivalent of "shrubbery for muggers!"
They include (1) seller's power to unilaterally change terms or assign the contract, (2) waiver provisions of the seller's liability and payment of seller's attorney fees, (3) acceleration and delinquency clauses, (4) binding arbitration and blocking the consumer's resort to the courts and right to jury trials, (5) liquidated damage clauses. On and on go the layers of incarceration.
Pretty clever maybe, but, you aren't being fair to the powerless consumers. Remember, you've got a professional code of ethics that informs you of the obligation sometimes to say no—enough already—to your demanding corporate clients even if they can always go to another law firm that they can pay handsomely to say yes. It can be, for you, a dilemma.
Listen, I've got an exit plan for those of you pondering quitting or retiring because you can no longer stand destroying peoples' freedom of contract—one of the main pillars of our democracy—with their consequential losses of money, time, health and safety.
Come to the other side. A movement for consumer contract justice is heading your way. Don't laugh as General Motors once did in the Nineteen Sixties. Don't think that the complexity of these fine prints cannot be communicated to the buying public. ABC's Peter Jennings showed the opposite with a crisp five part TV series a few years ago. This fall, a sure best seller by David Cay Johnston titled "The Fine Print" is coming out. He has prior best sellers on tax laws that clarify the abstruse to arouse readers.
There is a huge compression of repression and resentment ready to be unleashed and converted into a widely perceived injustice. Ridding themselves of the feeling that "that's the way it is," this consumer uprising will be holding you and your companies responsible by name.
Quit and join the right side of the coming historical change breaking the chains of contract bondage. Bring your knowhow and stored archives (names redacted) of "mice type" to faircontracts.org, directed by the relentless lawyer, Theresa Amato. Soon!
Your brother in law,
Ralph Nader, Esq.
Comments
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35 Comments so far
Show Allergo, the pension funds, insurance companies, corporations should do anything and everything to maximize revenues and margins. Including stiffing the law and ripping the consumer. Nolo has a jeweler's eye for economic justice.
Maybe the problem is not that "juries cannot be relied on to judge factual cases" as you so condescendingly put it. Maybe the problem is that a corporation's behavior might not be convincingly defended in a trial, no matter how well-paid the lawyer.
As for the rest of your post, the turgid jargon supports Mr. Nader's case very well.
Me thinks Nolo is a Lawyer who works for the highest bidder. Law in Amerika is a business, Prisons are a business and being a judge is one of the final pay offs (revolving door of justice fantasy): Courts and Lawyers are for rich people. Normal people can rarely ever get to a jury trail over civil suits unless they get a 'ambulance chaser lawyer who aint in the game for the justice, he is in it for business. If its criminal, you also got to be rich or depend on a public defender. And the PD's barely have time to read your name. Why? Because poor people are bad for the business of law. Usually you have to rot in jail before you ever get a day in court with poorly paid PD Lawyer. Money prevails and Money kills justice. Nolo uses his logic to serve the highest bidder.
"...since it is thought juries will sympathize most of the time with the retail customer rather than with the big, bad corporation no matter what the facts of a particular case or dispute."
So what? People accused of rape and murder and theft go on trial every day in front of juries that will certainly sympathize with the victim. Defense attorneys are paid to defend them anyway, using "issues of fact", a tool that you seem to find suspect. Your assertion that corporations and their lawyers are entitled to avoid legal accountability through the use of "boilerplate" smacks of unwarranted privilege and flat out laziness.
"...the large provider of goods and services -- being a "deep pocket" -- will almost always lose against a retail customer in litigation that gets to a jury."
Gee. I wonder why? Is it because the large provider of goods and services is almost always guilty? If a corporation faces frivolous lawsuits and is wrongly accused and fined, then that is wrong and it has my sympathy (and a right to appeal). If corporations are spending too much on frivolous lawsuits, then maybe lawyers should get paid a lot less.
But if the public has been mistreated by corporations so often that they paint them all with the same brush, then that would be a matter best addressed by the US Chamber of Commerce. Maybe cleaning up their act would be a better alternative than discarding trial by jury and rule of law.
"And who loses when the big, bad corporation loses? The union and other pension funds, mutual funds, holders of insurance company variable annuities and other individuals invested directly or indirectly..."
Once again, so what? The investors will take a hit, learn a lesson and invest better next time. A fund manager might actually get fired! Imagine that. Maybe after a few such losses the fund managers will become a little more careful about what they do with other people's money. That's their job. If it makes their job harder, tough shit. They get paid too much anyway. If it's low stress that they want, might I suggest that these Titans of Law and Finance look into becoming cashiers at the Dollar Store?
CHAOKOH: Nice work. I was not up to taking this pro-corporate shill on this evening. I'm glad someone else stepped in to counter his points. His whole premise is that the law exists on an equal playing field, and that corporations have to be protected against the dangers of a jury's emotions...
Thanks, Siouxrose.
Open letter to Ralph Nader.
deleted, sorry all
No doubt a wise choice.
Thank you.
I feel your painful existence Siouxrose.
As many here at common dreams has duly noted regarding your painful existence, it is as it is.
Today is a new day for you and I. Perhaps today will be a better one for you? If not, we always have tomorrow if we are so blessed.
The day the world is a brighter place for you, you will realize that many of us were simply and patiently waiting for the dawning of that day for you. To welcome you back home sister. :) Be well.
Nolo and Leea are starting to scare me. I have met people like you in institutional environments and you are trained to talk like that. Siouxrose is right.
LEEA: Because I find your posts a contortionist's nightmare of pabulum hardly suggests that I have a personally painful existence. Anyone with an OUNCE of empathy, which is to say a living soul, has to feel pain for all the horrors and destruction taking apart so much of this wonderful world.
Your posts try to sound glib and new-agey in their alleged spirituality, yet they sound very Christian to me. The subtext suggests who is saved and who is not. You think you are in a position to chastise people with FAR greater contributions to this world, and FAR greater intellects than you possess... as you make nonsensical judgment calls against people like Chris Hedges. That's why I commented that it was wise of you NOT to try to do likewise by condescending to another thinker, in this case the luminous Ralph Nader.
And your ridiculously patronizing, "The day the world is a brighter place for you" is juvenile if not disgusting. It's beyond arrogant for you to determine whether the world is bright for me, or anyone else.
And as for welcoming me back home sister... home? What could I possibly share in common with you? And you are NOT one I would call my sister.
Your comments sound like a cross between a nurse in a recovery room speaking to a patient who nearly died, and a pseudo-Christian, offering a welcome to the congregation, by spouting the soft-spoken robotic, authoritarian CRAP that every liberty on this earth bucks up against. In fact, you remind me of Nurse Ratchet...
"The day the world is a brighter place for you, you will realize that many of us were simply and patiently waiting for the dawning of that day for you. To welcome you back home sister. :) Be well."
Be well? From one who purports to recognize the state from a delusional context?
Mercy, mercy, me...
"
Believe it or not dear Sioux, we have a right to our opinion and feelings and we have a right for those to be respected. All the people that you bear chips on your shoulders for understand this in varying degrees, including but not limited to president Obama. Because they understand this in what ever degree they do, people like you who do not have the slightest inkling about this are powerless against their actions in the world. The most you seem to be able to summon is an ether existence here at Common Dreams where the consequence of your powerlessness is all the horrors and destruction unfolding and you cry and cry and cry and pound the key boards over it all and your inability to do anything but add to it and deny your role. You believe it is someone else behind the curtain when all along it is actually you. You have deceived yourself but as you continue to be unable to give me a shred of respect or consideration and your life energy seeps out for all to see, I will feel nothing but sorrow for your painful existence and I will keep simply asking you to choose to be nice and treat me and others as the equals we are to you. Each moment a chance for you as the days unfold while you are blessed as we all are to be here.
You go ahead and keep blaming or praising people you don't really know, I'll keep blaming and praising those I do. I do know you and I blame you for what is wrong in the world because all it takes is a few bad apples.
Be well,
~Leea
This is a tough sell, Ralph. Things have degenerated too far to believe that even remotely "honest", plain-spoken, clear, accessible language will prevail over high-speed, microscopic, doublespeak legalese.
This latest "open letter" made me think of seemingly disparate but related items:
• Congressman John Conyers in the film "Fahrenheit 9/11", explaining with droll irony and a twinkle in his eye that legislators didn't actually READ voluminous tomes like the Patriot Act before passing them.
At the time, I still believed that Elected Misrepresentatives like Conyers were on the side of ordinary unprivileged citizens, and foolishly believed that he was letting the audience in on a fine inside joke as he all but winked at the camera.
When I reflected on that scene as time passed, I finally realized that Conyers wasn't laughing with us, but at us.
• I was also reminded of part of a comment I'd written in January, 2010, ranting about the abominable "Obamacare" legislation:
______________
What of the prudent necessity for "sunshine" and "transparency", to which at least Democrats religiously pay lip service?
For starters, omnibus legislation expressed in thousand-plus pages of single-spaced text is at best a cruel parody of transparency-- a bluff virtually impossible to call. We are enjoined to simply accept as an article of faith that in our refined, ultra-sophisticated, hyper-complex, high-tech politico-business culture, this is simply the way it must be.
The experts are on a mission, and besides, they don't have the time to stop and explain to laypersons exactly what they're up to. That would be counterproductive, and not Pragmatic. But the ordinary citizen has a remedy: the right to "demand" clarification and answers from one's own Elected Misrepresentatives.
After all, the conventional view of rational, enlightened government presumes a convivial relationship between a constituency and its elected representatives, not an adversarial one. In this world, a citizen need not scruple to insist on details of pending legislation affecting his/her interest, and advocate those interests while doing so. In turn, the honest and trustworthy representative earnestly, candidly, and comprehensively answers the questions and connects the dots-- and gives the constituent's position due consideration.
Well-- even the crowd at "The Nation" wouldn't go THAT far. But the more realistic "remedy" is that the citizens are themselves "free" to BECOME experts; it's entirely up to them! Thus is transparency-- and more importantly, honor-- vindicated.
The experts, the pros, the sharps, the shysters, the pimps, the ten-percenters, the bean-counters, the horse-traders and wheeler-dealers don't just accidently produce masterpieces of mystification and obfuscation like the Patriot Act and the egregiously devolved No Insurer Left Behind abomination. [...]
______________
• I also thought of certain insidious and abominable mass-media practices that have become so pervasive that they're accepted unquestioningly by the general public: radio and teevee ads that employ high-speed, rapid-fire "weaselspeak"-- the "spoken word" equivalent of boilerplate and fine print.
Some varieties get noticed, and are even satirized by comedians-- e.g. those abominable Big Pharma ads that flog new miracle meds with a long, murmuring litany of horrific side-effects and pious disclaimers. But ads for telecommunications products and services, or motor vehicle sales and leasing, trail off in a string of gibberish uttered in a clipped, sinister undertone that is paradoxically "subliminal" in plain sight or hearing.
The public is inured and numbed to such things; when I've called attention to them because they affect me like fingernails screeching down a blackboard, others usually attribute this reaction to my usual "oversensitivity" to such minutiae. In any case, it all boilerplates down to "consumers" knowing that they're screwed in advance: reasonable "informed consent" is impossible, and resistance is futile.
I've channeled my inner Andy Rooney long enough, so I'll mercifully omit reference to computer and Internet "shrink-wrap" that coerces the user to "agree" to virtual contracts that no one ever actually reads-- even when they twist the knife by giving the user the option to "print" it out.
Unfortunately, I think all of the above is as natural and ineradicable from law in service to capitalism as rats and lice were to wooden sailing ships of yore.
This doesn't sound like kaffeklatsch to me.
I do not see that a drive for purity in a movement should necessitate confronting a hierarchy in only one way at a time. I do not see that mounting a legal threat against lawyers amounts to a distraction, nor that it should distract anyone from direct protest.
These are very different parts of a social event that must involve many people and many talents. Egypt has hit the streets and scored an immense victory, but we see that the struggle is not over, and that much may yet be won or lost in negotiation.
Vivan los indignados, and let us not forget that going outside of the "system" is essential, but such events do not bring an end to law or lawyers, and in this case forewarned is but a small part of being forearmed.
I like Nader's tone here, and I doubt the lawyers he writes to will mistake it. This is a challenge and a threat to a lot of six figure jobs, and not an invitation to parley. It sounds like he needs people to hit the streets, and no distraction.But it sounds like he reckons he can make it credible, and that is something.
I wonder if Mr Nader was inspired by South Park episode 1501 in which Kyle discovers that by agreeing to the contract accompanying his iphone update he was agreeing to be sewn lips to anus with a person of Apple's choosing. Disgusting, yes, in the excremental tradition of great satire, but the show basically makes the same points as this article.
The way the legal system works is to maintain lawyers as being in the position of deciding how the legal system works. Legal language is deliberately confusing so that lawyers are needed to interpret it like high priests of a religion. All judges decisions are really decided on the basis of benefit of the legal profession.
Notice how, no matter the outcome of the litigation -- civil or criminal -- lawyers involved always get paid. Legislators are populated primarily by lawyers who write the laws in such a way as to ensure the necessity of lawyers. The few legislators who aren't themselves lawyers depend on legal advice from staff lawyers, whose advice always acts to maintain the necessity for the ongoing participation of lawyers.
Lawyers enable the corporations and government institutions in such a way that they are always central to what's being done. None of their legal concepts are inviolate, "burden of proof," "reasonable doubt," "legal ethics," all that stuff, are all just "argument" used to make their self-serving cases, cited only when it works situationally to their advantage. They're there to assure that lawyers stay in the position that their profession is in. Since lawyers both make and interpret the laws, there is no chance of their cleaning up their own act.
The legal profession is public enemy number one.
A flawed analogy. Dentists are in the business of fixing problems not caused by themselves.
Pro se in a den of thieves? A sorry, scary position- if you have to defend yourself.
Ralph Nader needs to take on the corrupt legal/judicial system.
Hey, you've just solved the health care problem as well. Perform your own surgery!
Ha! Ralph makes a joke...and signs, 'Your brother-in-law'. He better ask his sisters about that!
Like the post by PP, I've always thought lawyers were taught to use regular words in a way nobody else could understand. They say stuff to each other only they can comprehend.
They'd be run out of town if we knew what was gong on.
And that's why the legislation is obscure, the contracts altogether too 'binding', and also unreadable.
Ralph Nader - and All:
Lysander Spooner, in the 1862 "An Essay on the Trial by Jury", pointed out very persuasively, I thought, that without the trial by jury as envisaged in his essay, a system of representative government, i.e, all western democracies, were absolutely bound to degenerate into oligarchies. His prescience was superb, and that is the system all western democracies now endure.
I won't go into the details, the essay is available in book form or on the Internet.
In "No Treason", the same L. Spooner made the convincing case that the US Constitution never was a contract between the people and the government, and was never binding even at the time it was written - and it certainly is not binding on those who were born later.
Finally, in 1882, Lysander Spooner wrote "Natural Justice..." By this time this constitutional expert had become a full-fledged individual anarchist, unlike the current president, also a constitutional expert, who is most certainly as far from L. Spooner's thinking as can be imagined.
So all this talk of contract law and fairness, i.e., natural justice, has deep roots, and anyone thinking to delve deeply into what is law and what is justice needs pay attention to Mr. Spooner's legal arguments - I humbly suggest.
I can't imagine how to run a large country or planetary government along the lines of consensual democracy, but then my imagination may not be up to the task. I do think others may be up to the task, however.
And I am certain that the reason for investigating this idea is now upon us, given the total, abject failure of representative democracy to serve the only true representatives of democracy in any meaningful way.
We are on the cusp of a catastrophic bifurcation - we are approaching critical transitions in many and interconnected fields.
It would take a few hours to research Lysander Spooner's three readings - only the "Trial by Jury..." is long. I think it would be a very instructive few hours, and might do more to put the social reasons for our imminent demise into perspective than any other thing I can think of.
Wholesale change is needed - and for that to be effective change rather than an unmitigated disaster, a 'justice for all' investigation is warranted.
Then there are 'rights for the environment' - another topic - for another day?
Manysummits
=======
Your plain-spoken eloquence has piqued my curiousity. I shall read Lysander Spooner.
Excellent post, and I like your tag line, "Many Summits," as it has a lot of different, all equally-UP lifting meanings.
Just like the Gifford assassin intuitively, and correctly, perceived, we are at the mercy of bureaucratic, linguistic, manipulation.....
Just like Goebel's propaganda.....
the pliable citizenry is easily delivered into chains and shackles
again....
both psychologically and economically....
..slavery is upon us.....
and it has been renamed...
..as free-market capitalism..
..or something to that effect....
Thanks Ralph and Ms. Warren for standing up to these sociopaths.....
Legal codes are based on words, which are in turn, mere linguistics,
They are therefore,
elastic, flexible, pliable, plastic, nebulous, evolution-prone, etc.,etc.....