Each member of the public is authorized to act on his own behalf. But when you deal with the “20-something salesperson” you and he both know that he doesn’t have the authority to modify contract terms by himself. So although he’s an agent of the store, he lacks the authority to enter into a changed contract on behalf of the store. You don’t lack authority to enter into a contract on your own behalf.
It was you who brought up Arizona.
I thought I finished with that back in post #25.
As for this ruling my point is four of the justices (and lower courts) found a legal rationale for allowing it. Five other justices didn’t.
Point being they did not just make stuff up that they felt was neato. They had what they felt was sound legal reasoning behind it. So no, I am not saying they just do whatever suits them.
I am saying they could have come to a better outcome WHILE adhering to the law (unless you want to make the case that their legal reasoning was so much bullshit).
You have mentioned you think this is the right decision. Do you think this will have a good outcome?
If it motivates Congress to modify the FAA, then it will, yes.
But the job of a judge is not to reach a 'good" outcome. It’s to reach an outcome that the law compels. No part of either the majority or the dissenter’s opinions should have been swayed by their view of what the best result for consumers would be.
So then is it inherently impossible to modify that (take it or leave it) contract? It seems so, but only by the way AT&T allows me to enter into it (using someone with no authority to modify or accept/reject modifications to it). How is that even a contract? I obviously and clearly rejected a provision of it.
Or are you saying there is no contract (when you say “[20 something salesperson] lacks the authority to enter into a changed contract on behalf of the store”? Because I’m also quite fine with there not being a valid contract.
This is an example of an unambiguous admission of error:
Here is an example of a concession buried down deep, disguised and frocked to make it almost painless:
Do you think I was happy to type that concession? Of course not. It made me look foolish, that I spouted off without checking my facts first.
But I did it, because I fucked up. I did it unambiguously. I didn’t try to hide the admission in the midst of other stuff, with ambiguous words.
Try it sometime.
I think he’s saying it’s inherently impossible to modify that contract the way that you’re trying to do it, because the clerk doesn’t have legal authority to modify the contract. You could call AT&T’s legal department and negotiate with them to modify it.
I think I’d say it’s a valid contract because you knew that the clerk didn’t have legal authority to modify the contract, and so you knew that your crossing out of the clause didn’t institute a valid counteroffer. I’m willing to be corrected on that point, though.
So rhetoric about all of congress being corporate stooges aside, does anyone have a feeling as to the likelihood of Congress modifying the federal law to be more in the direction of California’s law?
First, I appreciate everybody playing along.
Second, can’t the clerk change the rate and/or give me a discount (ie, we negotiate a monthly rate; or the clerk throws in monthly extra minutes for free, or I get a free upgrade, ect.) I’m remembering blank lines on the contract that the clerk fills in. Isn’t that negotiating the contract I’m about to sign? The clerk does have authority to complete the transaction and bind AT&T and the customer to (unchanged) boilerplate contract terms. It happens everyday. How can they have that authority to negotiate certain terms of the contract and bind me to that contract, but somehow not accept modifications to the boilerplate? That seems sort of like apparent authority to modify a contract. I’m not trying to be difficult here, just thinking out loud.
The whole process of this type of contracting is starting to break down in my head. I understand a company policy of a take it or leave it type contract; but I changed it, and they chose not to leave it. I don’t care if they didn’t notice or read it, just like they don’t care if I don’t notice or read their contract.
What experience are you referring to, exactly?
Seems impossible in the House. It’s just not a large enough issue to even get it brought up by the GOP leadership there, even if they had a reason to want to.
The clerk might have the authority given to him by AT&T to modify certain parts of the contract (the blank lines the clerk fills in) but not other parts of the contract (the language already in the contract). I’m thinking if I were AT&T, I wouldn’t want to give a sales clerk carte blanche authority to change a contract that would bind me willy-nilly.
[quote=“Bricker, post:65, topic:579953”]
Of the two of us you are the one who has been Pitted for your debating style (recently). Making an all too rare admission of a fuck-up in 28000+ posts is not something to crow about.
I’m pretty sure in my 14000+ posts I have admitted error as well. I just do not trot them out to say, “See! Lookie! I admitted I was wrong once! You should too!”
In post #25 I thought I ended what was a hijack I shouldn’t have got going in the first place. Nothing requires me to write something you like nor are you required to like it.
I stand by exactly what I wrote.
Count me as highly dubious that Congress will modify the FAA based on this. Their corporate overlords won’t let them.
Do you really think the SCOTUS justices do not bring their personal opinions about how things ought to be to the bench? They ALL do it. There is a reason there are distinct and predictable splits in the judiciary on many subjects.
I am willing to bet Scalia could argue, forcefully and convincingly, the other side of (most) any opinion he has written (I suppose there have been a few slam dunks in his career for which there really was no “other side”). I may dislike the guy but he is not stupid. I bet any of the SCOTUS judges could do that.
Look what Scalia did with the 2nd Amendment in Heller. Recall Scalia once said, “You want a right to abortion? There’s nothing in the Constitution about that”. Know what else is not in the Constitution? A right to self defense. Yet Scalia found it in the 2nd Amendment. Scalia wants a result (or outcome) then he finds a way to back into it. They probably all do that. Thing is Scalia’s outcomes tend more often than not to be bad for the average Joe (great for corporations though).
No.
What they bring, and what causes splits, is more subtle than that. They bring a philosophy of jurisprudence – what the proper role of the judiciary is – to the bench, and THAT is what motivates them.
Only the most cravenly activist judge – certainly none of the nine on the Court now – would say, “This is the result I want to reach, and I don’t care what law I have to twist or misinterpret to get there.” But Sonia Sotomayor believes in a very similar role for the judiciary as you do – a wise oversight of the legislature, there to do justice by creating law through wise social policy. John Roberts believes much more as I do – that the judiciary should be like the baseball umpire, not caring which side wins, and having no role in the making of the rules, but scrupulous about applying the rules to situations as they arise.
Who’s right?
Obviously I am. 
No. There is no “right” in this discussion. There is no objectively correct answer to which philosophy of jurisprudence is the “correct” one. I hew to my idea because I believe it’s consistent with our ideas about self-governance: that we entrust our elected officials with the power to MAKE law, because we have a ready remedy for their misfeasance, and we entrust our lifetime-appointed federal judiciary with neutral interpretation of the law.
But others say, with some justification, that the lifetime appointment is not to insulate them from public approval, but from the wild swings of public mood, and that with that protection, they can best function as a “superlegislature,” to keep the country steered on a wise course by nudging social policy in wise directions.
No justice on the Court simply says, “This is the way I need this to come out, so let’s find a justification.” Instead, each says, “Here’s what the role of the judiciary is,” and then acts according to his answer. But because the answers are very different, the final opinions are as well.
[quote=“Whack-a-Mole, post:72, topic:579953”]
All too rare?
Sadly, I’ve made many more mistakes. I can easily find ten examples of admission of error, with each one was unambiguous.
No, you don’t admit error clearly and unambiguously. If you ever admit it, you do it like you did it here – the message board equivalent of an embarrassed throat clearing and a mumble.
Here is a guy whom suggests the supremes removed the last opportunity consumers have to defend themselves against corporate malfeasance. He thinks it will allow AT&T to gouge as much as they want with no fear from legal action until it reaches a nearly impossible level.
This court sides with corporations over and over.
Of course, as that author inveighs against the result of the decision, he does not once identify where he believes the Court erred on the law.
Considering that the modern class action didn’t take its current form until 1966 (thanks, Wikipedia!) and that the Federal Arbitration Act has been law since 1925, do you care to take a stab at explaining how late capitalism managed to survive this 40 year interregnum of corporate impunity?
You fundamentally misunderstand class actions, and are letting your blind hatred for lawyers cloud your judgment.
Let’s say a phone company has 10 million customers. They purposely overcharge customers $5. There is an arbitration clause in the contract.
The phone company has illegally made $50 million in profits.
Before this decision, customers had the opportunity to join a class, where they didn’t have to take off work/go into a scary legal process against a corporate juggernaut/“waste time” fighting over $5. Lawyers would do all the work – paying out of their own pocket – receiving NOTHING until a settlement or verdict was reached.
Let’s say the settlement is $30 million. The lawyer then takes 30%, which is the standard fee in contingency actions. The class gets the rest. Will it be their full $5? No. Will it be more than they would have gotten otherwise? Absolutely. Like it or not, only a very small minority will ever actually submit their claims to arbitration. The less money at stake on an individual basis, the less likely individuals will be to pursue it.
If the lawyer took 30% of each individual payout, their fee would end up the same. Is it good money for the lawyers? Absolutely. But they bear the entire risk. They’re out tens of thousands of dollars if the case loses. They have millions of people to which they are accountable. They do far more than 30% of the work.
How would you propose the lawyers get paid? Each class member pitches in some money? How many people do you really think are going to do that?
For an individual who would have gone to arbitration anyway, it may seem like a bad deal (“I got less than what I would have gotten!”). Two points: 1) they can opt out of the class action and 2) the goal of a class action is to restore as many wrongfully harmed people to as close to a position as they would have been but for the wrong as possible, while also respecting the realities of society in that people aren’t going to subject themselves to the legal system over $5, even though the aggregate illicit benefit is massive.
Don’t think of class actions as a lawyer filing one suit on behalf of one client. The lawyer is doing work for millions of clients. In the above example, the lawyer makes $9 million, doing work for 10 million people. These 10 million people are getting a lawyer for $0.90. Can you hire a lawyer individually for $0.90? Let me know if you can.
After this decision, this is no longer an option. Your 3 options are now:
- hire a lawyer for FAR MORE than $0.90 and go to arbitration over $5; 2) go to arbitration over $5 despite no training, it only being $5, probably having to take time off of work or leave work early, and the system being completely unfamiliar or 3) just let the company have your extra $5.
But, we’re better off, because at least the lawyers won’t be making any money.
Oh it can be modified alright. By AT&T. At any time in the future.