April 30, 2011
April 28, 2011
We’ll soon find out what’s the latest from the SCOTUS on unconscionable contracts of adhesion, extortionate ”contracts” forced upon us through the coercion of monopoly and artificially created economic hardship. These strong-arm contracts are increasingly popular, and are imposed anywhere the corporations attain the position of dominance which enables them. In theory such contracts, just like gambling, are supposed to be unenforceable, uncontracts. But here too the SCOTUS has usually served as the corporate goon. The Lochner era was based upon the legalization of “contract” extortion, and although the court nominally abandoned this doctrine in 1937, in practice courts almost always still find such contracts valid. In the case of AT&T vs. Concepcion, AT&T’s thefts were so outrageous that the lower courts found the contracts it imposed, forestalling its victims to combine to sue as a class, to be unconscionable. But this will be the SCOTUS’ big chance to restore Lochner as official court doctrine.
The gist of the case, AT&T Mobility vs. Concepcion, is that AT&T systematically committed flat out fraud and theft by tacking bogus charges onto bills. The goal was to cover up for these by slathering the contracts in fine print boilerplate jargon, forcing the customer, as a condition of the contract, to agree to “arbitration” in any dispute, and make the thefts small enough that the customer either wouldn’t notice or would consider it too much of a hassle to pursue a refund. And by keeping the victims informationally isolated from one another, AT&T hoped the thefts would all look like mistakes which at worst warranted crediting the customer’s account, not felonies which warrant punitive damages as well as prison sentences for company cadres.
There’s a lot here which shouldn’t be able to happen, according to the capitalist textbooks. According to capitalist ideology, a competitor should come along and take all of AT&T’s business by offering better service. This competitor will allegedly offer clear contracts, no fine print, which don’t require the customer to surrender his constitutional rights as the condition of the contract. (The contract should always be absolutely clear, as a matter of market efficiency. Anyone who makes the contract opaque is simply hindering the market, not behaving as a legitimate capitalist, and will hurt himself in the competitive marketplace. The ideology says so.) This hypothetical competitor will also be so good as to not, um, steal. The contracts which surrender the right to sue are clearly invalid, as they are unconscionable contracts of adhesion. Meanwhile a conscientious government, conscientiously enforcing a conscientious law, will see that the victim gets his day in court and will vigorously prosecute the wrongdoer. The system will be vindicated!
Of course, in reality the opposite happens. In reality the telecom sector matured, congealed, and calcified. It concentrated into a stagnant oligopoly with full government assistance. All the oligopolists collude to impose the same opaque, unconstitutional adhesion contracts upon the prostrate customer. The government encourages them to do this. No competitor is likely to arise. The government helps set up the insurmountable barriers to entry. There is no competition. “Competition” is just another Marie Antoinette “let them eat cake” term – “You don’t like the contract? Go to the competition!”
There is no competition. In almost every sector, a few oligopolists have a stranglehold, and they collude to impose this grip with no escape, no alternative. The government does all it can to help them attain this death grip. Capitalism is a failure and a fraud.
“The dissent claims that class proceedings are necessary to prosecute small-dollar claims that might otherwise slip through the legal system,” Scalia wrote. “But states cannot require a procedure that is inconsistent with the FAA, even if it is desirable for unrelated reasons.”
“The overarching purpose of the FAA,” Scalia wrote, “is to ensure the enforcement of arbitration agreements according to their terms so as to facilitate streamlined proceedings. Requiring the availability of classwide arbitration interferes with fundamental attributes of arbitration and thus creates a scheme inconsistent with the FAA.”
April 26, 2011
April 21, 2011
April 19, 2011
April 18, 2011
April 15, 2011
April 14, 2011
April 7, 2011
April 6, 2011