I would need a series of lectures on the US judicature system, I believe, to even start to grasp how the fuck shit like can make sense from a legal POV as well as of a common-sensical POV.
Just for the record, the incident I described above was related to extra-parliamentarian GATT and TRIPS opposition. Today, TTIP critique could be a stand-in. And what you described is exactly the fuel for the nightmares of people opposing these kind of international agreements, since harmonisation seems always to go in the favour of weakening the “regulatory” approach which seems so typically European.
(I hate to bring Trump et al. into that, again, but it really is weird to me that the far right jumped onto the TTIP opposition waggon. This used to be a thing for people opposing neo-liberalism. sigh It always attracted weirdos and people who couldn’t get their arguments straight, but they were quite good at identifying the people with nationalist views amongst them and get rid of them. Not any more.)
Sidenote: frankly, the more I hear about the two Roosevelts, the more puzzled I am how on earth they did that kind of stuff, and why the heck aren’t there more people trying to fill their footsteps. The US are friggin weird.
To paraphrase Dante, abandon common sense all ye who enter here.
A large part of how Trump ate the GOP like a metastasizing cancer was by appealing, by way of xenophobia, to the belief among Americans who think they’re conservative (most are really just anti-progressive) that establishment politicians from both sides of the aisle served shadowy transnational elite moneyed interests, and a large subset of those voters buy into the antisemitic Elders of Zion conspiracy theories. Basically, racism, fear and superstition.
Obviously I wasn’t alive then, but even in my lifetime I’ve seen a sea-change in the American political landscape. I think the answer is that it was a very different era.
It’s not just the US with those kind of clauses. The logic is actually quite straightforward and in my view fairly compelling. Which just goes to show that logic is not everything.
The argument goes that the US (and the UK and most of the western world to varying lesser degrees) believe that the fundamental principle of contract law is that there should be freedom to contract.
In other words, people should be as free as possible to enter into what ever agreements they want to and the role of the law is to uphold the agreements people entered into rather than otherwise.
That inevitably leads to it being ok if for example someone wants to enter into an agreement which says that any dispute will be settled by arbitration (Schiedsgericht in German terms) or mediation (or in theory being settled by a best out of five thumb-wrestling contest).
In many situations that might in fact make sense. It’s quite common in Germany for example in contracts between commercial parties.
Quite how any court ever let itself be swayed into thinking there can (except in vanishingly small edge cases) be any sufficient degree of equality of arms/negotiating power between an employer and employee that anything in a contract of employment can be said to have fairly negotiated and freely entered into is another question…
In principle I agree, of course. But as you note, the negotiating field is stacked against the employees. Moreover, I’m pretty extremely ambivalent about the idea even in principle of allowing people to waive their right to take another person or entity to a real court because it opens the way for the other party to simply ignore their side of the contractual obligations since they can’t really be held accountable for being in breach.
Even in a totally equitable society, I doubt the wisdom of allowing such things, despite the fact that as a civil libertarian I believe in maximizing individual rights to the limit before they infringe on other people’s rights, or a balance of liberty in simpler terms. I suspect allowing waiving access to one of the pillars of republic is harmful to such balance.
This less so since in a sensible legal system you still leave a mechanism for a court to review the decision of the arbitrator, plus of course there can be significant advantages to arbitration such as the ability of the parties to choose their arbitrator and to set their own timescales.
Given that in a court claim you get whichever judge happens to be available and they may or may not have any specialist experience in the area your case deals with being able to choose your ‘judge’ in arbitration can be very useful especially for technical disputes.
For example, imagine a dispute between a developer and the construction company over some issue with a large building project, say a question about whether the structure has been built to spec. or whether the spec is sufficient to carry the weight. A judge will basically sit and listen to a bunch of experts and pick one lot which they prefer without any real ability to know which one is right.
In arbitration, the parties could pick someone they both accept as an authoritative expert in the field, submit their evidence to the expert arbitrator and let him make his decision.
Enforcement of an arbitration decision is not really a problem. Once the arbitrator has made their decision, the decision is enforceable in the normal courts. In fact, it can only be enforced through the normal courts.
It does only work where the parties are more or less equal in size and power.
I’m definitely doubtful as to whether it is right that one party should be able to insist on arbitration even if the other party changes their mind and would prefer court.
OTOH, court is not the wondrous protector of the little man either so… sometimes arbitration is going to be better even for individuals against giant companies.
At the end of the day no matter which system you use, the entity with more money has more chance of getting the result they are after.
I don’t know of any way of solving that other than by widely available, generous legal aid provision. Even that is not a full answer.
