Revision — From the April 2016 issue

Suing for Justice

Your lawsuits are good for America

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Standard contracts are now full of “tricks and traps” in “mice type,” to quote Senator Elizabeth Warren. Often buried in pages of fine print are clauses that essentially waive the liability of vendors and surrender the right of consumers to a trial by jury in favor of private arbitration that usually favors the vendors.

The “Waiver of Liability, Assumption of Risk & Indemnity Agreement” used by the University of California, Santa Barbara, for its “Elective/Voluntary Activities” is not unlike similar waivers required by organizations and corporations:

I, for myself, my heirs, personal representative or assigns, do hereby release, waive, discharge, and covenant not to sue The Regents of the University of California, its officers, employees and agents from liability from any and all claims including the negligence of The Regents of the University of California, its officers, employees and agents, resulting in personal injury, accidents, or illnesses (including death) and property loss arising from, but not limited to, participation in The Activity.

The 2015 “Monsanto Technology/Stewardship Agreement,” which Monsanto requires farmers who buy its products to sign, limits the liability for harm caused by the company’s seeds to merely the amount a customer paid for the seeds purchased:

The exclusive remedy of the grower and the limit of the liability of Monsanto or any seller for any and all losses, injury or damages resulting from the use or handling of seed (including claims based in contract, negligence, product liability, strict liability, tort or otherwise) shall be the price paid by the grower for the quantity of the seed involved or, at the election of Monsanto or the seed seller, the replacement of the seed. In no event shall Monsanto or any Seller be liable for any incidental, consequential, special or punitive damages.

The Verizon Wireless customer agreement, like most mobile-telephone contracts, requires customers to give up their right to a jury trial:

You and Verizon Wireless both agree to resolve disputes only by arbitration or in small claims court. You understand that by this agreement you are giving up the right to bring a claim in court or in front of a jury.

The evil creators of such across-the-board exclusions are corporate law firms, which develop and promote such compulsory fine-print arbitration clauses and other barriers to equal justice under the law. By leaving us with secret tribunals that are biased in favor of corporations, these firms have strip-mined and twisted tort laws against the very people most in need of them — those harmed who are without power and have been abandoned by both business and government. At stake are the shrinking rights and remedies that are available to the millions of people each year who are victims of defective products, medical malpractice, toxic chemicals, workplace dangers, police violence, and a host of other torts in our complex industrial society. With only a few of these victims able to achieve redress and hold perpetrators accountable, justice becomes severely rationed, and the inflicted costs, instead of being absorbed by the wrongdoers in order to encourage subsequent deterrence, are foisted on victims, their families, and taxpayer-funded social-welfare programs such as Medicare, Medicaid, and Social Security (via disability payments).

To add insult to injury, consumers now have to share the hefty hourly fee of arbitrators, those private judges whose awards, which generally cannot be appealed, lean toward the companies that can give arbitrators repeat business. Consumers are warned about the fees they would have to pay to enter arbitration; many consider this expense unaffordable and swallow their grievance. Unless more courts start to rule these fine-print restraints unconscionable, millions of people will be barred from their right to have their day in court. Some may vent their rage in the streets.

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is a consumer advocate and the founder of the American Museum of Tort Law, in Winsted, Connecticut.

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