Last week the Diane Rehm Show discussed arbitration under the rubric Waiving Your Right to Sue. The focus of the segment was on the increasing use of contract clauses to mandate the use of arbitration to settle disputes between corporations and individual consumers / employees. Several years ago my former employer asked me to agree that I would submit any employment disputes that might arise between us to binding arbitration so this subject sparked my interest.[1]

Originally arbitration was seen as a tool to resolve commercial disputes arising between businesses. While justice was a concern, timeliness, low cost, and finality were also important; “Decide against me if you must, but do so today, inexpensively, and without any lingering future uncertainty.” The 1925 Federal Arbitration Act reflects this commercial perspective.

Advocates of arbitration offer up the advantages of lower cost and timelier results. They also offer up statistics that seem to show that for broad classes of issues arbitration and court results are comparable. Indeed it was claimed by the American Arbitration Association that for some types of cases individuals win more often in arbitration than in court and receive larger awards.

So why is this a concern?

A shrewd listener (adamsscn) to this segment commented on The Diane Rehm Show’s web site and reported two of her ‘rules to live by’ that seemed applicable:

Mandatory clauses are in the best interest of the person or entity writing the clause. Or in other words, a mandate favors the one doing the mandating.

When in doubt, it is always in a person’s best interest to maximize his or her options. Giving up an option is never in one’s best interest unless one knows exactly what is being given up.

Postulating for the sake of discussion that arbitration really is in individuals’ best interests, reasonable inferences might include that:

We would expect individuals to select the option of arbitration when the need arose, and further that

There is not justification to mandate arbitration before the fact (since rational individuals would choose it when it made sense.)

Yet increasingly individuals are coerced to surrender their right to access to the courts and forced to resort to binding arbitration to resolve disputes with corporations. These clauses are frequently written into credit card agreements, job applications, labor agreements, product warranties, cell phone contracts, and software end user licensing agreements. You know, all those things we don’t really read but ought to.

Our agreement is, of course, voluntary but it is a peculiarly coerced, and often hidden, definition of voluntary. Coerced in the sense that if you want to apply for the job agreeing to mandatory arbitration is a take-it-or-leave-it pre-condition; no agreement - no job. And hidden in two senses. The first is that for things like product warranties and software licenses you may not see the clause until after the purchase is made. The second sense is one of hidden in plain sight; the clause requiring you to submit to arbitration is right there in plain sight; see in Article 7, Section 4, Subsection 9, para. 23, line 8 in all of it’s sesquapedalian bafflegabish glory. Unless you have a lawyer on retainer to find and explain these clauses to you, you are surely out of luck. [2]

While U.S. Courts were not originally supportive of arbitration in lieu of legal proceedings, both Congress and the Judiciary now strongly support arbitration as an alternate dispute resolution process with the usual endorsement of arbitration’s accessibility, timeliness, lower cost, and finality vis à vis the courts. Wholly apart from my developing suspicion of corporatism this flags to me a larger problem. The proper response to an inaccessible, untimely, expensive, and indeterminate legal system is to FIX IT!. [3]

A cynic might suspect that the relevant stakeholders are confronting perverse incentives that encourage maintaining of our dysfunctional legal system; it seems to work well enough for them that there is no outcry for reform. Perhaps Dick the Butcher was was right after all. [4]

Notes

I was never very likely to vote for Mitt Romney but I never thought I would look to Ron Paul for a cogent response:

Interviewer Question: “Real quick question for you… What did you make of Mitt Romney’s statement that corporations are people yesterday?”

Ron Paul Answer: “Well obviously, they are not. People are individuals, they’re not group and they are not companies. Individuals have rights, they’re not collective. You can’t duck that you know that, so individuals should be responsible for corporations, and they shouldn’t be a new creature so-to-speak. The rights and obligations should be always be back to the individual.”

He’s right. At the end of the day individual human beings are the agents that make choices, take actions, and are responsible … in corporations, unions, public interest groups, political parties, and the government. When we obscure this we run the danger that people will feel insulated from responsibility from their actions. This way danger lies.

The Move to Amend group is proposing a constitutional amendment to address this issue in the campaign funding context. While I don’t think the constitutional amendment approach will succeed I don’t have an alternative and this windmill needs tilting.

The story of Persephone’s abduction and return is traditionally referred to as the Rape of Persephone. A potted summary:

Hades, god of the underworld, fell in love with Persephone and consulted with Zeus. Zeus advised Hades to kidnap Persephone since her mother, Demeter, would not consent to the match. Persephone was gathering flowers when Hades abducted her to the underworld. In response Demeter caused the earth to become barren until she was returned. Zeus eventually forced Hades to return Persephone to the earth but there was a catch. Anyone who ate or drank in the underworld must remain. Hades had tricked Persephone into eating four pomegranate seeds. When Demeter and Persephone were reunited the earth became fertile again but Persephone must return to the underworld for four months each year and the earth again becomes barren.

The book discussion group I attend discussed Alice Munro’s collection Too Much Happiness last Spring. The discussion sparked a number of things to think about and I ended up going home fixated on the first story in the collection, Dimension originally published in the New Yorker magazine. The keywords embedded in the New Yorker web page’s HTML for the story almost tell the story:

“Murder, Children, Marriage, Mental Illness, Buses, Ontario, Canada, Social Workers, Husbands, Prisons (Jails), Accidents, Mouth-to-mouth resuscitation, Children, Wives”

I wouldn’t have seen any similarity to the Rape of Persephone except for two coincidences: Over twenty years ago I read L.R. Wright’s series of Karl Alberg mysteries, and I live in Michigan. The Alberg mysteries were moderately entertaining but their significance here is they took place in Sechelt, British Columbia on what the local tourist promotions refer to as Canada’s “Sunshine Coast.”

Although I retain almost nothing of the Alberg mysteries what has stuck with me was that there was a golden place in the rain shadow of Vancouver Island’s mountains where it was sunny. If you are a Michigander this is something you notice. In Michigan we live through winters of unending gray. We are gray connoisseurs - my favorite gray is a thick bright gray cloud cover that scatters photons in all directions so that everything is uniformly illuminated and there are no shadows. On one winter walk this particular gray taught me how much I implicitly depended on light and shadow to find my way.

The two primary characters in Dimension are Doree (AKA Fleur) and Lloyd. Doree, age 19, lived with her mother in Sechelt. Her mother was in hospital ‘for a serious but not dangerous’ condition until she unexpectedly died. Lloyd, an older man (late 30s/early 40s) was an orderly at the hospital (and I suspect caused the mother’s death. Embolisms are always just so convenient …)

When her mother died Doree was hustled from Sechelt by Lloyd to a rural life outside Mildmay, Ontario (across Lake Huron from Port Hope, Michigan and ~30 miles inland.) It shares Michigan’s lake effect cloud cover and seasonal sun light deficiency. This swift transition from sun light to gray was the first thing that brought to mind the abduction of Persephone. Doree (meaning golden), is taken by Lloyd (meaning gray, holy), from the sun lit coast into the gray. Golden is a standard epithet for Persephone, while the realm of Hades is described in Greek mythology as misty and gloomy (i.e. gray.)

Hades, usually a passive god, could be provoked to great violence when his subjects try to leave, much as Lloyd was when Doree left. Doree develops a friendship with Maggie, a fellow home-schooling mother. Lloyd dislikes Maggie and as their friendship develops verbally abuses Doree so much that she leaves and goes to Maggie’s house to get some peace. When Maggie brings Doree back to the house the next morning Lloyd has killed their three children.

Lloyd goes to prison and Doree goes into something like a disassociative fugue state. Doree visits Lloyd in prison several times and is on the bus on her way to see him when she witnesses a single vehicle traffic accident. Her bus stops and Doree successfully revivies the teen-aged driver with mouth-to-mouth resuscitation.

Doree decides she doesn’t need to continue on to the prison and waits with the revived driver for the ambulance. Although Lloyd has been in prison for months, Doree isn’t liberated from Hades until now. Where Persephone’s liberation from Hades brings life to the world, Doree’s gift of life brings her own liberation.

The term New Yorker Stories has become a generic one in my family for stories that may or may not have actually been printed in the New Yorker magazine, but that start and end at apparently arbitrary points and vary in tone from glum to worse.

Over a recent weekend I was re-reading Alice Munro’s collection of short stories, Too Much Happiness, in preparation for a group discussion . When I took a break my wife asked me what the stories were like. After I described one she said, “Oh, you mean they’re New Yorker Stories.”

Later that same weekend I ran across the below from Allison Lurie’s review of Julian Barnes’ latest in the NYRB:

“Literary fiction, however, now tends to conform to Tom Stoppard’s addition to Miss Prism’s Rule, first stated in Rosencrantz and Guildenstern Are Dead (1966): “The bad end unhappily, the good unluckily. That is what tragedy means.” The scale of the tragedy, of course, varies widely. When we begin a story by a known and admired writer in a known and admired journal, we do not always expect a major disaster, but we know that something unpleasant is going to happen to the main characters, and/or that they will end up understanding something unpleasant about themselves, their friends or family, or the world in general. (Years ago, a Harvard student called Speed Lamkin described the latter tales to me as “stupid little realization stories.”)”

This seemed to be a most satisfactory description of the New Yorker Story.   The only opportunity for improvement would be to replace the phrase “known and admired journal” with some more explicit reference to the New Yorker.

Hypothesis 1: Low population density inhibits development of public transportation solutions.

Detroit covers a large area compared to other cities and population decreases over the last 50 years have decreased population density. This makes the development of cost-effective public transit solutions difficult and decreases demand for them.

Hypothesis 2: Metro Detroit’s existing hub and spoke public transit architecture is obsolete.

Large scale movement of people in the Detroit metropolitan area Detroit’s used to be mostly about moving people from suburbs downtown to Detroit to work and returning them home after work each day. The architecture of the metropolitan public transport solutions reflected this. Getting downtown was easy; getting from one suburb to another not so much. Going from Pontiac to Mt. Clemens would involve a trip down Woodward Avenue to downtown Detroit followed by a trip up Gratiot to Mt. Clemens; at least twice a far as the crow flies. Although we still have this public transit architecture, commuter traffic is now is primarily from one suburb to another rather than from the suburbs to the city center.

The new Woodward Light Rail Project is perplexing in this context. It is a ~$500M project along the Woodward Avenue spoke and is entirely within the City of Detroit. The Woodward Avenue spoke’s natural length from Detroit to Pontiac is 31.1 miles yet the light rail project is planned for only 9.3 miles - from downtown to the Detroit city limit at 8 Mile Road - all within the city. In the Detroit area more than 77%" of jobs are outside of a ten mile radius from the city’s center.