As we start the New Year, let’s celebrate where we came from in history by honoring those magnificent troublemakers who still temper our lives today:
Revolutionary Troublemakers
Have a great New Year!

21 Comments

  1. betts —
    You’re pushing the line of civility here with some of your latest comments. Political satire is an acquired taste but one that should be cherished and supported no matter which side of the red line you stand on and the mark of an intellectual is the ability to hold two equal but opposite thoughts in your head at the same time and find value in each of them.

  2. We’ll come out of it soon enough. China is rising economically so we’ll have our hands full with business decisions and not war decisions soon enough, right?

  3. You make an excellent point about China, soos. Will we choose to compete with them with drums over fiddles? Time and tide will tell, I suppose, but China won’t roll over as easily as some in the Middle East have done when we come cowboying into the region.

  4. I wonder if people would still support the Constitution, if it was brought up for a referendum.
    ReligiousTolerance.org reports that a survey of people showed weak support for the Bill of Rights, especially when it came to the First Amendment. http://www.religioustolerance.org/amend_1.htm
    People have a tendency to want to ban the things they don’t like. “While Americans respect the First Amendment as an ideal, increasingly they’re ambivalent when it protects offensive ideas or troubling speech or art or music,” said Kenneth Paulson, director of the First Amendment Center, in the ReligiousTolerance.org article.
    I noticed that someone in my state’s legislature want to restrict “violent” video games. I probably wouldn’t want to buy such a game and wouldn’t let my two sons play, but once they ban one form of communication, they will start looking for others.
    My blog could be next even though its contents can be found in magazines sold at the grocery store. Or, your blog because it attacks religion. Or, Howard Stern on satellite radio because he’s too racy. Or, a newspaper that isn’t considered to be mainstream or of high enough circulation that espouses strange and “dangerous” views that upset the status quo.
    Anything could be a target depending on who wants to limit our rights.
    It shows the lack of critical education about the Constitution in our public schools that people seem to support banning and limiting rights for people and groups they don’t like.

  5. Hi Chris!
    Your link is welcome and terrifying! However, I am not surprised. I think most people today would always prefer a benevolent dictator over a democracy because democracy is hard work and it takes a commitment from everyone in the community and not just a select few.
    I take all your points and weep over them because you so succinctly point out the hole in which we have found ourselves dug into with no clear way out and up.
    I heard on the radio the other day a stunning monologue on credit card companies and banks and how they force arbitration on consumers in order to deliver them credit. The essayist said by agreeing to binding arbitration instead of keeping open the options of a jury trial — and that universal access to the legal process was so important to the founding of this nation that it can be found in the Fifth Amendment to the Constitution in our Bill of Rights — but with a conservative legislature, presidency and judiciary in common power and all indebted to big business and not the small pocket pluralities, we have our lives chewed away from us under the pretense of fairness in dealing with financial monoliths.
    Few realize arbitration clauses usually always grant the right to choose the arbitrator to the bank or credit card company — so lawyers and firms who rule in majority favor of those paying them get more money flown their way in the future and can guarantee a certain level of profitability if they arbitrate in a determined and predictable manner.
    The essayist ended his monologue by affirming that the Bank of America wins 96% of its arbitration cases and one law firm in particular that ruled in favor of BOA 99% of the time “heard” 55,000 arbitration cases for them last year alone.
    What a fix we’re in because the fix is in and it isn’t fixed in favor of the common man!

  6. We handle credit card cases at my firm. Arbitration is the wave of the future unless the courts restrict some of the rights that people can contract away.
    Everyone’s credit card will have an arbitration agreement sooner than later, if it isn’t already governed by such an agreement already.
    A lot of the push for arbitration is to limit the right to file a class action lawsuit.
    The credit card companies win probably greater than 96% of their cases in state court, so it’s pretty much the same as in the arbitration forums. I’ve made that argument before judges in Indiana that the results of arbitration line up with their court’s statistics.
    Most people never dispute, or if they do, they are looking to make a deal or stall so they can file bankruptcy. Usually, if there’s a major dispute, i.e. a legitimate identity theft case, the client won’t proceed against the victim of the theft.
    I don’t do a lot of credit card work in Illinois, so arbitration clauses aren’t an issue for the debt cases I work on there. I will have to ask around since arbitration is built into the legal system there to see if there is any opposition.
    Illinois non-small claims cases always get set for arbitration before a panel of local attorneys before they can ever even get a chance to go to trial in front of the judge. My experience in Cook County is that matters can get set for a final trial without needing to go to arbitration on the 11th Floor’s Municipal Division.
    In Indiana, when the credit card arbitration cases started coming before the court, defendants would often raise issues about the legitimacy of arbitration.
    But, the Federal Arbitration Act is clear that parties can contract to arbitrate and the federal law preempts state arbitation law. Some judges still raise issues and sometimes rule against the award. (Our office has an appeal going for a case I worked on regarding the statute of limitations of an arbitration award. There’s a split in the circuits so it might be one of those cases that could go far if it doesn’t go in our client’s favor).
    Indiana’s Supreme Court has also been pushing for alternative dispute resolution to unclog the courts, so arbitration probably will be here to stay with modifications to what rights can be contracted away.
    I suspect, however, if the courts rule against contracting away the right to class action suits, the credit card companies will stop using arbitration because it is an extra step and additional expense, and just proceed directly in state courts.

  7. I almost forgot.
    The law that really helps the credit card industry is the new bankruptcy law. It’s tougher for the BK attorneys to navigate and for debtors to discharge their debts in a Chapter 7. It would be interesting to see the BK filing statistics for the last quarter of 2005 compared with the first three quarters.
    Now that interest rates are going up, more people will default as credit card companies raise their minimum payments to keep up with the ever higher APRs.
    Before, there was a calculation to be made so that people weren’t forced into bankruptcy.
    Now, since the bankruptcy law is more restrictive, it will be interesting to see if more people default but are unable to file a Chapter 7.

  8. Chris!
    Thank you for your great insights into these matters. Your comments are always gracious and incredibly informative!
    Arbitration is fascinating and every lawyer I’ve ever had has crossed out any and all arbitration clauses because, they say, you want every avenue open to you if things go wrong and contracts are created to help decide how best to move forward when things go wrong. You don’t need a contract if things will always go right.
    The publishers and producers I’ve dealt with have always fought me on deleting the arbitration clause. My attorneys have been firm on the matter and my attorneys also require if we go to court we do it in my home state and not the other party’s home state and that, too, is always a big bone of contention.
    When you look at arbitration clauses is reciprocal discovery protected or curtailed?
    Do you see many arbitration clauses that allow each side to okay the arbitrator or is the selection of the arbitrator pre-determined by one party if things do not go well?
    I agree the new Bankruptcy laws are bad for consumers and good for big business! Will the local Bankruptcy lawyer have more or less work now with the new law?
    In New York one courthouse that processes personal bankruptcies processed 25,000 in the month before the new law went into effect where other months averaged around 2,500. People were scared and rightly so.

  9. If you can cross out an arbitration clause, you are probably better off doing so.
    If you have a contract where you have some power on the other side, i.e., the publisher wants your book, you can probably make some changes.
    Even if you are at the car dealer, you might want to insist on making changes, then walking out if they won’t deal. The car dealer might not care and allow changes. However, they might not allow you do make changes because they won’t be able to assign the debt to the bank or credit company.
    With consumer debt, you probably won’t be able to make changes.
    Is it adhesive? Probably not since the major credit companies are doing it without problems. The argument against (without doing research on the issue) is that you are free to borrow money from the place that will give you the best deal.
    In reality, when people need money, they usually are in a tight spot and will take the first offer that comes to them. Never take the first offer, especially one that arrives in the mailbox in the form of a “live check.”
    Most people probably don’t even question an arbitration agreement. Think about the times you’ve bought a car, house, major appliance, etc. The documents get pushed across the table and you’re told to sign and date. Most people never ask to read or look at the paperwork until they look at their copy later on after the purchase.
    Most pre-printed credit applications won’t let you change anything on the form without agreement of both parties.
    Usually, you apply for a credit card, get the credit agreement, along with a shiny new credit card, that says using the card binds you to the contract. Most people probably don’t look too closely at the fine print because they want to start using the card as soon as they get it. I wonder how many people cut up a card and send it back before using it?
    Credit card applications won’t let you opt out of arbitration, unless you had a pre-arbitration account and follow certain provisions, such as sending a letter to a specific PO Box before a deadline and not using the card afterward. If you didn’t opt out, even paying off the bill still keeps the arbitration agreement in place, so you can’t file a class action lawsuit, etc.
    Some state laws, usually where all the credit card companies are located, will allow the card company to change their credit agreement unilaterally with notice. The debtor is prohibited from changing the agreement, however.
    Also, credit card contracts (or any credit agreement) pre-selects the arbitrator and only allows the creditor to change the arbitrator. The debtor can’t select an arbitrator under most, if not all, credit contracts.
    This is where a lot of debtors get ripped off. They buy a “debt elimination” package, try to unilaterally change the arbitrator to “Billy Bob’s Arbitration Forum” and get a sham award from a forum that wasn’t contemplated in the agreement. They pay a lot of money, but their “award” is useless because no court will enforce it. There is a case in a California superior court where the court sanctioned someone who tried to enforce a sham award as trying to perpetrate a fraud on the court. See Bench & Bar of Minnesota’s article on the “Ostrich Defense.” http://www2.mnbar.org/benchandbar/2004/march04/internet_scams.htm
    The home state advantage is always important, as well.
    Indiana has a usary rate, but other states don’t. Illinois is an example where people get car loans with a 35% APR — not a good deal at all. Even if they couldn’t get the best rate, they would do better to come across the border because of lower interest rates and lower taxes.
    Credit card companies get to import their rate from where they are incorporated, so they select a state without any usary limitations. There might be law selection clauses contained in the contract, as well.
    Having your state’s law makes it easier for your attorney to work on the case, rather than trying to figure out the law of Delaware or North Dakota. Usually, it is in favor of the party selecting that particular state’s law.
    Plus, if the case is tried in your home state, the judge might have to do some quick learning about the law selected in the contract. Usually the person doing the education via brief and memoranda will be the side who chose that law. It’s another disadvantage.
    Also, be careful about forum selections. If the case can only be brought in a court that is thousands of miles away, it makes it very difficult to defend or prosecute a case. Most arbitration rules mandate that the arbitration take place in the debtor’s state and prefer document hearings to save travel expenses.
    I worked for a firm that did transactions law (as well as a bunch of other things). I always put in a certain county in Indiana as the forum in all the contracts because that was where the company was located. I don’t think I ever had to re-do a contract, even though the company was doing business nationwide. It surprised me because I would have expected reciprocal forum agreements for both sides. I would have asked for the right to sue in my county of residence if I was going to sign the contract.
    A lot of arbitration agreements limit discovery by applying the rules of the arbitration forum. The major ones have their rules online and usually limit discovery in some way. In Indiana, discovery is informal and doesn’t need court permission, except for small claims.
    In an arbitration forum, it may be whatever the rules are of that forum. The rules can be found at the websites of the big three arbitration forums. The National Arbitration Forum is one major outfit that is used by a lot of credit card companies. http://www.arb-forum.com/. JAMS is another: http://www.jams-endispute.com/. And, the third major forum is the American Arbitation Association: http://www.adr.org/.
    I’m not sure what the discovery rules are for the arbitration forums, but I’ve seen the warnings in the contract that discovery may be limited. (We don’t do the arbitration cases — another firm does those, then we file a state court action to confirm the arbitration award).

  10. HAH! I really like this commentary! Great post. Happy New Year.
    betts. Get off your high horse. It’s a nag and everyone is entitled to their own opinions. If you are going to critique someone, insult slinging is juvenile. Regardless of your opinion, this ‘comic’ is still considered art. JMHO.

  11. Excellent comment, Chris! I am learning a lot about these arbitration issues, thanks!
    I have found that just crossing out the arbitration clause and initialing it usually works when I am purchasing a product (as you said, credit cards don’t change boilerplate) and I usually get that clause removed. Having the right to be taken to court or arbitrated in my local jurisdiction is usually tougher to wrangle but asking for it is always important.
    I am always disappointed in how many young writers sign bad contracts. They are so desperate for success of any sort that they sign away their present and their future in so many needless ways.
    My favorite hated future signing away is the right to publish future projects. That is never a good idea. You’re making one deal right here right now. If you find great success you want all options open. If you fail then you’re not going to get your next project picked up anyway.
    I don’t mind future options with money upfront, but the future options are always usually tied to the current deal so you’re giving away your future for zero consideration and no guarantee that anything will ever be produced or published.
    I am off to read your links now and I thank you for sharing your time here! The advice you gifted us all here is invaluable and probably $3,000 if you had to pay for this kind of insight from a private attorney. THANK YOU!