“Contracts Freely Entered Into” or “An Offer He Couldn’t Refuse”?

October 6, 2017
Posted by Jay Livingston

On Monday, the Supreme Court heard arguments about arbitration clauses in the contracts that consumers and employees sign. I don’t know how many times I have clicked on “I agree,” but one of the things I’ve probably agreed to was arbitration.

Imagine that a company is adding a small and almost hidden fee to the bills of all its customers. If I notice it, and if I complain, the company might give me back the few dollars it has scammed me out of over the past several months. But they’ll keep the money that thousands of less vigilant customers have paid. Or maybe they won’t do the right thing. I could file a lawsuit. But even the cheapest lawyer would cost far more than the amount of money I might get back.

The way to stop the scam is for some ambitious lawyer to file a class-action suit on behalf of all the victims. But it turns out that all of us have clicked “I agree.” We will each have to settle the dispute in individual arbitration. No class action. Me vs. Wells Fargo. Guess who’s going to win.
       
It’s the same for workers whose employment contracts have arbitration clauses.

Earlier this year, Susan Fowler sparked an uproar in the technology industry with allegations of sexual harassment and gender discrimination at Uber. An internal investigation led to more than 200 employee complaints and at least 20 terminations. But Fowler may not be able to sue Uber in court. When she joined the ridesharing company, Uber required her to resolve any disputes through private arbitration and waive her right to participate in a class action. (Wired)

Sunday night at 10:00 – just a few hours before the Supreme Court heard the oral arguments – “The Deuce,” had a memorable scene about individual arbitration. The show has several interwoven plot lines, all set in the grittier regions of the 1970s New York City ecosystem. In the blue-collar biota, Bobby is in charge of paychecks at a construction site. His brother-in-law, a sleazo named Vinnie who knows some mob guys, suggests that instead of handing out paychecks they become in effect a check-cashing service. The worker signs over his check and receives cash minus a 5% cut. The workers will be OK with it. Pay comes at the end of the day on Friday, the workers want cash for the weekend, and the banks are closed till Monday.

Except one of the workers, Bill Schmidt, wants his check for the full amount. Word of this gets around to the mob guy. He comes to the construction site with his enforcer, has Schmidt called aside, and supervises the mob version of individual arbitration – the goon beats Schmidt brutally.

I doubt that Justices Gorsuch or Roberts or any of the others were watching “The Deuce,” and if they were, I doubt that they saw a connection. After all, there are obvious differences between Uber and the Gambino family. MasterCard is not the Mafia. Wells Fargo didn’t beat up their employees who were reluctant to join in the company scams. Wells Fargo just made it impossible for them to get jobs in banking.

We all know the most famous case of a contract signed under a power imbalance.

The important similarity is the discrepancy in power. At some point, that power difference makes it ludicrous to talk about “contracts freely entered into.”

When there are only one or two providers or credit card companies, and they all have the same provisions in their contracts, how meaningful is “I agree,” especially when these companies have armies of lawyers? They also have the Republican-appointed majority of the Supreme Court.

The Vast Majority of Gun Owners

October 5, 2017 

Posted by Jay Livingston


I heard a guy on the radio arguing against any new gun laws. He said that he himself owns many guns, maybe forty (roughly the number owned by the Las Vegas shooter, though the guy on the radio didn’t phrase it that way).. His personal arsenal includes a few assault rifles. He likes to go out to the shooting range and open fire. That’s what the vast majority of gun owners do, he said. Plus self-protection. 

So I’m reposting what I wrote a few days after the Orlando nightclub massacre. And I may repost it yet again after the next massacre. Of course, it will probably have to be a record breaker to make the news. Your run-of-the-American-mill mass shooting, with its paltry three or four victims – that happens just about every day, so it doesn’t even make the news the way it might in most other countries. 

When Guns Do What Guns Are Designed to Do

An assault rifle is designed to kill – to kill a lot of people, and quickly. That’s why it was created. That’s its primary function. For soldiers in combat, it’s a very good thing to have. If it could not kill lots of people, nobody would want it.

Manufacturing assault rifles in pink and posting pictures of young girls holding them doesn’t alter that basic purpose. Neither does the statistic that nearly all civilians who own them use them for fun. What that statistic means is that we as a nation have decided through our legislators that the fun of those gun owners is more important than the lives of 50 people in Orlando or 20 schoolchildren in Sandy Hook.

Here’s an analogy. Suppose that the military developed small bomb, something like a hand grenade but much more powerful. It easily blows up a building and kills anything within a 50-yard radius. Soldiers find them to be very effective in combat.

The companies that manufacture these bombs also sell them to the public. Lots of people buy these bombs. Bomb stores spring up next to gun stores. They have names like Bombs Away or It’s Da Bomb – all in good fun. And in fact, nearly all of the buyers use them for fun – tossing them into empty fields. People go to bombing ranges that have small buildings put up so that patrons can blow them sky high. Of course, there are accidents. Bomb owners sometimes blow up themselves. Or their own houses with their children inside. 

But occasionally, once a year or so, someone tosses a bomb into a crowd of people or into a real building. Many people are killed. Predictably, liberals say that maybe we ought not allow these bombs to be freely sold. Maybe we ought not let them be sold at all. But the bomb lobby claims that bombs are armaments and therefore are protected by the Constitution from being restricted in any way, and besides, people need the bombs for their own protection. Our legislators, a majority of them, agree. The occasional slaughter is no reason to prevent everyone from getting a bomb.

The bomb lobby and the media will invariably refer to each slaughter as a “tragedy” –  unfortunate but unavoidable. After all, the bomber got his bombs legally. And if he did get them illegally, it just shows that bomb laws don’t work.

Bill O’Reilly on Guns: Six Specious Reasons to Support the Status Quo

October 2, 2017
Posted by Jay Livingston

I figured that after today’s massacre in Las Vegas, I could count on Bill O’Reilly for some specious arguments about guns. He didn’t let me down. In a post (here) of only 270 words (237 if you leave out his recounting of some of the facts), he manages to make at least a half dozen misleading or false statements.

1. But having covered scores of gun-related crimes over the years, I can tell you that government restrictions will not stop psychopaths from harming people.

They will find a way.

This is the all-or-none fallacy. It implies that since we can’t entirely stop murderous psychopaths, we shouldn’t try.  We can’t “stop” highway deaths either. Does that mean we shouldn’t try to make make roads and cars and even drivers safer?

The killer had a lot of rifles, some of them fully automatic (probably converted from semi-automatic). He also had lots and lots of bullets. Even if he couldn’t have been stoppped, restricting the kinds of guns and ammuntion psychopaths and anyone else can get will reduce the number of victims. 

2. The issue is so polarizing and emotional that little will be accomplished as there is no common ground.

This is a variant on the first argument. Since we might not be able to solve the problem entirely, we shouldn’t bother trying. Civil rights was polarizing. Healthcare, abortion, same-sex marriage, legal weed – all have been (and in some cases still are) polarizing. Should we give up on trying to do something about these issues until we have consensus? If you don’t look for common ground, of course you’re never going to find it.

3. The NRA and its supporters want easy access to weapons, while the left wants them banned.

All-or-nothing and no-common-ground again. O’Reilly implies that there is nothing between unlimited access and a total ban on all firearms. That’s obviously wrong. O’Reilly is also factually incorrect about what NRA members and people on the left want. A majority of NRA members support background checks and some restrictions on firearms. And nobody on the left has proposed a total ban.

4. This is the price of freedom.  Violent nuts are allowed to roam free until they do damage, no matter how threatening they are.

O’Reilly plays the American trump card – Freedom. Almost guaranteed to win any argument here. But he plays it as though there is only one freedom card. Either we have it or we don’t. He’s saying that any restriction on guns will totally eliminate freedom.

Australia, Canada, the UK, Germany, and all these other well-functioning democracies – are they substantially less free than the US? Have they sacrificed all their freedom by making weapons of mass slaughter hard to get?

5 and 6. The Second Amendment is clear that Americans have a right to arm themselves for protection.  Even the loons.

The Second Amendment says nothing about self-protection. If it was so clear, would the Supreme Court have taken over two hundred years to figure it out? (DC v Heller, 2008),  Nor has the Court said that crazy people have the right to buy guns. In fact, two years after Heller, the Court said explicitly that states could prohibit the mentally ill (and felons) from possessing guns.

So there you have it – six specious arguments in favor of not trying to do anything to reduce gun violence and death. O’Reilly didn’t go the “thoughts and prayers” route. He didn’t say, “This is a time for our thoughts and prayers for the victims. It’s not a time for politics.” (It never is.) Instead, he found another way, less sanctimonious but more deceitful, to say, “Let’s not even try to think about policy, about what we can do.”

Hef and Auguste Comte

September 28, 2017
Posted by Jay Livingston

One tiny fun fact that you probably won’t find in the Hugh Hefner obituaries this week: The brains behind Playboy was a sociologist, A.C. Spectorsky.

Spectorsky did not have a sociology degree. He had a BS in physics from NYU, and he worked in media. But his writing had a sociological bent. His 1955 book The Exurbanites (he coined the term exurbs) was reviewed by C. Wright Mills.

Spectorsky (left) and Hefner, 1956.

In 1956, he became associate publisher of Playboy, and I suspect that it was Spectorsky’s ideas that transformed Playboy, surrounding the photos of bare-breasted women with pages that proclaimed the cultural sophistication of the magazine and its readers. With Hef, he moved Playboy from the nudie-mag periphery to a more central place in the culture, with circulation numbers to match.

His byline was A.C., and most people called him Spec. But the initials stood for Auguste Comte.He was named after the man often credited with coining the term sociology.