Wednesday, November 10, 2010

The Disempowerment Agenda

I almost missed Susie Madrak's post on Saturday about a Supreme Court case being argued this week that could have great ramifications for the future of class-action lawsuits. Here's the Center for Media and Democracy's primer:

The AT&T Mobility vs. Concepcion case arose from a class-action lawsuit against AT&T by consumers alleging unfair trade practices. Individuals in California signed a contract with AT&T for wireless service because they were promised free cell phones, but were later hit with hidden fees and charges. The wireless contract stated that disputes with AT&T must be resolved by an arbitrator, not through litigation; however, California law requires that so-called “arbitration clauses” do not prohibit individuals from joining with other similarly-affected persons and bringing a class-action claim. Specifically, AT&T is challenging the California law on grounds that the Federal Arbitration Act (passed in 1932 to allow an alternative forum to resolve disputes besides courts) prohibits states from mandating that class arbitration be available as a part of every arbitration agreement.

However, as stated by the Los Angeles Times’ David Lazarus, “The basic question before the court is whether companies can bar class actions in the fine print of their take-it-or-leave-it contracts with customers and employees.” If the court decides in favor of AT&T, corporations could effectively prevent consumers from bringing class action lawsuits by including arbitration clauses in all contracts, removing a legal tool that deters businesses from engaging in unfair, deceptive, or harmful practices. AT&T’s case is backed by other telecom companies as well, like the American Bankers Association, the Financial Services Roundtable and the U.S. Chamber of Commerce.

As CMD notes, class actions typically provide citizens a better chance of getting justice than do arbitrations—so obviously corporate powers have an interest in cutting off this avenue of redress. And the nature of the Roberts court does not give us much grounds for optimism about this case being decided in a consumer-friendly direction.

Hmm. Think about the answers to this question: How can people keep from getting screwed by big business/corporate interests—or get justice if they do get screwed?

  1. government/public regulation and oversight (to deter screwings from happening in the first place—and punish the screwers when they do)
  2. personal legal action (to get redress for screwings after they happen—and hopefully to deter them as well)
  3. personal action of other sorts: writing angry letters, picketing, violent retribution, etc.
OK. The Right has been waging war against #1 for decades: get government off our backs, shrink it down and drown it in a bathtub, etc. It's clear that in their vision of an ideal society, the government/public sector will not serve as means of protection for ordinary citizens against big business/corporate powers.

As for #2, it's prohibitively expensive for most individuals already; huge corporate interests will always find it easier to afford armies of lawyers and decades of litigation than will the average wronged person. And if "tort reform," the curtailment of class-action suits, etc. make it even harder for individuals to get redress in the courts, then this means of protection will be cut off as well.

That leaves #3. But then writing angry letters, pacing with placards, and so on don't seem like much of a threat, and as for personal retribution, well, corporations will have little trouble outmuscling and outgunning the average person—and since the Right state serves property, they'll have State power on their side as well.

Remind me again: why do so many people think they're serving "liberty" by voting Right?


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