Saturday, November 14, 2015
#318 / Contracts Of Adhesion
I have been watching The Good Wife since the inception of this television series. It's about politics and law, and is now in its seventh season. I have found, among other things, that the various episodes almost always focus on real and contemporaneous legal and political issues.
On Sunday, November 1st, for instance, Episode 7 of Season 7 of The Good Wife, was entitled "Payback." The episode featured an exploration of for-profit educational institutions, which have sometimes defrauded their students by promising that the education to be provided would result in a good-paying job for the student. Based on such expectations, students have taken out huge educational loans, usually from the federal government, and they end up with a large student debt, which they then can't pay off. No job, of course, and probably not much of an education, either.
In the November 1st episode, students in just this situation came to attorney Alicia Florrick (the main character, played by Julianna Margulies), and she found that there was actually very little she could do, as an attorney, since the students had essentially signed away their rights to sue.
To demonstrate just how truly "contemporaneous" The Good Wife is, with respect to the legal problems explored on the show, I opened up The New York Times on Monday, November 2nd, the very next day, to find a major, front-page article on exactly the problem featured on The Good Wife the night before. You can read The Times article by clicking this link. You might also be interested in an article appearing on the Financial Page of the November 2, 2015 edition of The New Yorker. Written by James Surowiecki and titled, "The Rise and Fall of For-Profit Schools," this article, too, explores the exact situation portrayed on The Good Wife.
The legal problem faced by students who have, quite possibly, been defrauded by the for-profit school to which they paid so much money, is the fact that students typically sign an enrollment contract committing them to a highly restrictive and binding "arbitration" process that completely displaces their ability to go to court. Students report that they didn't read the contracts, and/or didn't understand their implications. It strikes me that we have all gotten in the habit, recently, of signing contracts without reading them, because we so routinely "accept" the extensive conditions to which we must agree to get access to the various Internet websites or web services that have become such a major part of ordinary life. If you want to use any of the Google tools, or to keep up with your friends on Facebook, you don't really have a choice. You either "agree" and "accept" the highly detailed contracts proffered, or you are shut out of your access to the online world.
Since I have been teaching a course at the University of California at Santa Cruz, entitled "Privacy, Technology and Freedom," I have had an opportunity to see how students react to the problem, once they focus on it, and understand that their "privacy," among other things, may be completely compromised when they click the "Accept" button, and agree to the conditions required by online sites and services.
I have found that once students address this problem, the most common reaction is for the students to blame themselves, and other users, for not reading the contracts and agreements before signing up. One student paper, in fact, was titled "Small Print Laziness," the premise being that it's "laziness" that keeps us from reviewing the contract terms before we "accept" them.
I don't think so!
I wouldn't sign a loan agreement without reading the fine print, but I don't think there is much reason to review a long document associated with getting access to a site like Facebook, for instance. There is really no choice; if you want to use online resources, you simply must agree to the contract presented, because you are not going to be able to negotiate the contract individually.
In fact, the various contracts that we now are used to signing, without reading them, will almost always qualify as "contracts of adhesion." The courts do provide at least some enhanced scrutiny of such contracts, to prevent unconscionable overreaching by the stronger party, but current protections are not really adequate, as the November 1st episode of The Good Wife showed.
The corporations that want to subjugate ordinary consumers by demanding adhesion to terms which come on a "take it or leave it basis," will actually get away with it unless and until those ordinary consumers act in common to even the playing field. I'd like to suggest that this is a "political" problem. We need to change the law, so large corporations, be they for-profit educational institutions or Internet service providers, can no longer victimize members of the public.
I'm waiting for an edition of The Good Wife that will feature that plot point!