“Never have children, only grandchildren.”
― Gore Vidal

“Write what you know will always be excellent advice for those who ought not to write at all. Write what you think, what you imagine, what you suspect!”
― Gore Vidal, The Essential Gore Vidal

Annoying fine print may not even be legal

By Bob Sullivan  (on msn.com 12.21.2012a

Can the New York Yankees change the First Amendment and make their fans agree to the change? They tried recently.

"Ticket holders acknowledge and agree that the Yankees' ban on foul/abusive language and obscene/indecent clothing does not violate their right to free speech," the team wrote recently in a new far-reaching set of fine print published in the October edition of Yankees Magazine.  The phrase appears on tickets, too.

Anyone who’s been to the Bronx recently probably wouldn’t fault an attempt to make it more family friendly, but can a baseball team change the Constitution and force you to accept it?

Welcome to the world of “boilerplate” language -- also known as mouseprint, standard form contracts, fine-print fraud, shrink-wrap contracts, etc.  

U.S. consumers rarely engage in any kind of transaction today without clicking or signing away a wide swath of their rights. Cellphone contracts, software purchases, baseball tickets, credit card applications -- all include lengthy tomes full of ominous warning that most of us ignore.

Regular readers of this column know I am a collector of fine print and its absurdities, such as school waiver forms asking parents to sign away their kids’ right to “enjoy life.”

Consumers hate fine print, but emotions rarely carry the day in courtrooms. So corporations have been having a field day with barely readable terms and conditions for some time. In fact, fine-print writers have been emboldened by a recent Supreme Court decision in which the court took their side.

But in a new book titled “Boilerplate,” author and lawyer Margaret Jane Radin is taking aim at the intellectual and legal basis of fine print, trying to put a serious dent in the legal argument behind it.

"I don't think there's a contract, ever, when something is just dropped on us," Radin said, "especially when there is no option to vote with your feet as a consumer, when there are no alternatives.”

Radin’s point is that contracts, by definition, involve two equal parties that negotiate terms, while fine print is issued on a "take-it-or-leave-it" basis. (Just try to negotiate a lower early termination fee or strike out any clause when you sign a cellphone agreement.)  In layman's terms, fine print is merely a list of bad things that can happen to you, the consumer. You might get hit with a penalty fee; your service might be terminated; your right to join a class-action lawsuit is surrendered.

Some lawyers would call these take-it-or-leave-it agreements "contracts of adhesion," a special class of contracts that can be ruled unenforceable if the consumer persuades a judge that the provisions are "unconscionable." As you might imagine, that's a high bar -- it means generally that such provisions would be shocking to a normal person's conscience as excessively unfair. Such a legal battle also involves an excessive amount of legal fees, so it's not a realistic option for an aggrieved cellphone holder.

Radin wades into this confusing situation with a fairly radical idea. Trying to shove fine-print agreements into contract law, she argues, is like trying to shove a round peg into a square hole. She calls it “legal gerrymandering.” Instead, courts need to adopt a brand-new way of looking at fine print, she says.

Her view is simple: Interactions between consumers and companies are more like brief encounters with strangers than negotiated bargains between equal parties. As such, they fall into the realm of tort law, rather than contract law, Radin argues.

That change would have dramatic implications for fine-print haters everywhere. Were these agreements viewed as torts, angry cellphone owners would retain the right to sue for damages, including pain and suffering, if they believe a company has violated their rights, by making an unauthorized withdrawal from the consumer's checking account, for instance.

Generally, the argument in favor of fine print has been economic. Industry groups have repeatedly argued that standard-form agreements are essential because no one wants every consumer negotiating their own terms and conditions for every transaction. The logic runs like this: Form agreements save companies money, particularly when they limit liability and the potential for costly lawsuits, and that savings is passed on to consumers.

But some rights can't be signed away, Radin argues, even if a consumer seemingly agrees to that. Even if it saves them money.

"Important rights can't be canceled by a private party just because they pay the value," she said. "For example … you can't sell food with E. coli just because it's cheaper. … You can't say we haven't maintained our airplanes, but our prices are cheaper, so you assume the risk if we fall out of the sky."

Fine print that limits liability or complicates consumer costs is everywhere  –  on coffee cups, on dog bone packaging. It’s flashed for a brief moment on TV mortgage ads, it’s read at record-breaking speed on radio ads for car leases. Falling under the general term “disclosure,” its absurdity and ineffectiveness is hard to debate.

“Disclosure doesn't work. We don't understand it, even if it's in large print. We don’t read it, even lawyers,” Radin said. “That’s why we have to start evaluating these disclosures a different way. They aren’t contracts.”

When consumers talk about fine print, they usually focus on hidden language that imposes punishing late fees, doubles prices after some unknown trial period or springs other tricks and traps that ding their wallets. But when consumer lawyers talk about fine print, they are usually complaining about something a bit more theoretical -- common provisions within agreements that indicate consumers waive their rights to sue the company if something goes wrong or join in a class-action lawsuit.  Instead, consumers are forced into a process known as binding mandatory arbitration. Most consumer agreements with banks, cellphone companies, credit card issuers, television subscription services and other service providers  include arbitration clauses.

Consumer groups and class-action lawyers despise such provisions and have been fighting them in courtrooms around the country for some time, arguing that waiver of jury trial rights is “unconscionable.”

After compiling a mixed legal record, the fight was dealt a devastating blow last year, when the U.S. Supreme Court sided with AT&T in a case involving a consumer who sued to have a class-action lawsuit waiver thrown out of a cellphone contract. Within months, similar waivers began appearing in nearly all consumer agreements, dealing a blow to the entire class-action system.

Consumer lawyers argue that waiving a right to a jury trial in order to buy a car or baseball ticket is similar to waiving the right to free speech.

Anyone who's ever received a 50-cent coupon because of an old class-action lawsuit that earned lawyers millions knows that lawsuits are hardly a panacea for the problem of misbehaving companies or those that impose overreaching terms and conditions.  But neither is a free market, argues Radin, unless it is truly a thriving market with informed consumers.

In many markets, consumers have few or no choices. Most cellphone firms have the same early termination fees and arbitration clauses, for example.  Meanwhile, if fine print is too small to read or too arcane to understand, there won't even be a handful of ace consumers who can provide a watchdog effect. What happens next is called a "lemon's equilibrium," a term first coined in the 1970s by economist George Akerlof.  

"If there is a lot of competition in a marketplace, and at least some consumers are very well informed, then market forces can have a positive impact on fine print,” Radin explained. “But even if there's a lot of competition, but not enough people in the market know what's going on, there's a race to the bottom. Everybody just buys the cheaper product ... and everyone gets a lemon."

Radin's argument is broader than a need to protect consumers from $480 satellite dish early termination fees or to preserve their right to sue. She thinks that industry's reliance on sweeping rights clauses in every consumer agreement, and the courts' compliance with that, has created an alternate legal system in America -- one that voters never agreed to.

"This is creating a mockery of state legislatures. We elect legislators, they decide something is important and debate it, then vote on a law, then it becomes law,” she said. “Then corporations write rules and they effectively become law, contradicting what the legislature did. What we think of as a contract is really important to our conception of social order. Think of how many people are affected by (boilerplate language). If it is thousands or millions of people, that's letting a firm create a new legal universe.  That undermines our rule of law."

 

We must temper a rush to take the guns away from our citizens.  Gun control rings out coast to coast and recent events seem to many a justification to take the guns away from all but the military and police. A growing populous thinks this will keep the guns from criminals, mentally disturbed and terrorists.  Did prohibition keep alcohol from the people?  Do the drug laws keep illegal drugs out of the hands off drug addicts, and illegal distribution and the manufacture of the hard drugs and marijuana?  It is illegal to steal, murder, use illegal drugs, drive intoxicated, drink alcohol under the age of 21 years and not to exceed the posted speed limit.  Of course no one ever breaks the law.  Do you know anyone who has obtained a restraining order against another person?  How effective is a restraining order?  If violated, how effective or willing are the police to enforce it?  If the police enforce it, how will the court deal with it?  The answer, not much.

Why do I bring up these examples?  To point out the inabilities of laws that prohibits behavior or the possession of illegal items to effectively reduce the intended effect.  It seems to grow a new class and more criminal activity.  The innocent will be left defenseless to protect themselves from those who mean to do us harm.  With fewer and fewer law enforcement personnel we will be at the mercy of the criminal.  Police response as a whole is poor and the courts are overflowing along with our prisons.

Our founding fathers wanted the citizens to have the right to bear arms against a suppressive government.  This country was populated by those fleeing oppression and unjust laws dictated by one or a few. The constitution was drawn up to protect us from an unjust and/ or oppressive person or group and the ability for the individual and nation to protect themselves and their rights by maintaining arms and a militia.

I don’t like guns, but I know history and I fear for our rights and liberties that are eroding every year.  The erosion is not necessarily by evil or power hungry individuals or groups (yes…some are in this category) but many are just individuals who will destroy this country freedom and rights we are assured in the Constitution.  Then, the door is open for oppression, not all at once…but a bit at a time by those fearing terrorists, criminals, bullies and the wrath of God.  Before we know it, we lose our individuality and freedom to a few who govern our actions.

I DON’T LIKE GUNS, BUT, I FEAR FOR THE EROSION OF OUR RIGHTS AND LIBERTIES.  Once the camel gets its head in the tent, the next thing you know, the whole camel is in the tent. Look how the government has more and more control of our lives and families than it did 50 years ago.  Study how this country was founded, why the founding fathers structured and empowered the federal, state and local governments as they did

“Power corrupts and absolute power corrupts absolutely”.  (John Emerich Edward Dalberg Acton, first Baron Acton (1834–1902).

“There is no human problem which could not be solved if people would simply do as I advise.”
― Gore Vidal

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― Gore Vidal

“The important thing is not the object of love, but the emotion itself.”
― Gore Vidal