“So, you seem unduly upset to be living under a new feudalism. That’s really as silly as a serf back in the middle ages being upset about it. It’s the world you live in, Elie, much as it might chafe your ass to pay fealty to the legally created psychopaths that are your lord and master. Pay your bills and be quiet,” said the skeleton of my father from his grave outside of Peekskill.
“On the other hand, you really should write up your insight about the nuts and bolts of how the new feudalism actually works, on the ground. I like that idea about contract law replacing constitutional rights, but I didn’t go to law school, you did.”
It hit me the other day, the actual mechanics of how this new feudalism actually works. Current contract law trumps many of our other rights as consumers in the American market place. In corporatocracy, corporations dictate the terms of all contracts, making them favorable to themselves, disabling the consumer to the fullest extent allowable by laws they lobby for, while retaining an outsized voice in how those contracts are construed by courts– or even if a consumer has a right to take the contract to court. I give our accomplished Chief Corporatist John Roberts a lot of the credit for this, as I will elaborate on in a moment.
Students in civics class learn that our rights as U.S. citizens flow from our original contract with our government, the Constitution. The constitution enumerates the rights and responsibilities of every citizen, and every branch of government, under our laws. Every law we are subject to must pass Constitutional muster, in other words, must not infringe on rights guaranteed to us as U.S. citizens. The Supreme Court is the final arbiter of what is constitutional and which laws must be struck down as unconstitutional, as every American student learns.
“The little inside joke of all this, of course, is that a group of lawyerly men appointed for life, joined in recent decades by a few lawyerly women, decide, unappealably, what rights of yours a white man is bound to respect,” said the skeleton.
Indeed. You had a century where the Fourteenth Amendment, enacted to protect the rights of newly freed former slaves, was not enforced. The Supreme Court ruled, a decade after the end of the Civil War, that ‘the day of the Negro as the special favorite of the law is at an end.’
“Well, you know, favoritism has always been frowned on in this country, especially for those who don’t deserve it, especially by those who don’t have to worry about such things,” said the skeleton.
There was, as you know, never even a federal anti-lynching law, even the revered FDR couldn’t sign it.
“He had to put it in a drawer, the pocket veto, as they call it, he’d have lost all the swing-voting klansmen Democrats of the South who voted for his New Deal if he’d taken control of their Negros away from them,” said the skeleton.
Naturally, we’ve had any number of pieces of shit serve on the Supreme Court over the years. There’ve been some good ones, some smart ones, some mediocre ones and some outright foul pieces of shit.
“That’s democracy, you take your political appointees as you find them,” said the skeleton with a noncommittal shrug.
So here’s what I realized the other day. The bulk of our rights under law are controlled by the terms of the one-sided contracts we sign with the corporations who provide services to us. We are routinely required to sign a take it or leave it agreement before we can receive virtually any service from a corporation.
There used to be a doctrine in the law that you cannot sign away, in a contract, a right you have under the law. There was also something, also considered quaint today, called a contract of adhesion. The contract of adhesion was a take-it-leave-deal imposed by a powerful party on a party with no bargaining power. Courts at one time could throw out such contracts on the grounds that they were contracts of adhesion.
I was looking for that case you told us about, where parents of Ivy League graduates had sued to get their tuition money back on the grounds that the university had broken an implied promise to impart wisdom, enlightenment and good character to their spoiled children.
“Why do you assume the children were spoiled bastards just because their wealthy, litigious parents tried to weasel out of paying for their Ivy League educations?” said the skeleton.
I’m a hater, dad. When it comes to litigious rich fucks, I simply lack basic tolerance.
“Not very Christian of you, son,” said the skeleton.
No. Anyway, searching in vain for the case, and the judge’s great language, I came across a law review note, written by a graduating law student, analyzing the law. It was written in 1976, when the doctrine of contract of adhesion was still something courts took seriously, and contains a good definition of a contract of adhesion, to wit:
One contract doctrine working in favor of the student-plaintiff is that of contracts of adhesion.44 This doctrine cuts against the general rule of freedom of contract and allows a court to refuse to enforce contracts that are excessively one-sided. “Standardized contracts .. .drafted by powerful commercial units and put before individuals on the ‘accept this or get nothing’ basis are carefully scrutinized by the courts for the purpose of avoiding enforcement of ‘unconscionable’ clauses. ’45 … While the doctrine is most often applied when there is a near monopoly on a supply of goods or services,” it has also been applied when there is what could be called a “de facto monopoly”-a large number of suppliers offering the same harsh terms. (source)
In contract law there is supposed to be a ‘meeting of the minds’ between the parties, some kind of ‘mutuality’, particularly if the parties are of unequal power. Each party, in classical contract law, must give the other some concession, called ‘consideration’, in order to make the contract legally binding. The legal niceties of constitutional case law are complicated and boring, but the dispute turns on the precise technicalities of each of these ‘terms of art.’
“Okay, you completely lost me, Elie. I’m with Shagsbee– first thing we do, kill all the lawyers,” said the skeleton.
Well, that sounds like a good start, but, as always, the devil is in the details. Also, of course, that character Shakespeare has say that is a villain who wants all the lawyers out of the way so he and his friends can ride roughshod over the populace without lawyers taking action to enforce inconvenient laws.
A concrete example, then. John Roberts was a well-paid corporate attorney and a very accomplished lawyer before becoming Chief Justice of the Supreme Court. One of his great innovations as a high-priced corporate lawyer was the ‘arbitration clause’ which became standard for contracts with large corporations. In consideration of being provided such and such service, the customer agrees to forego the normal right to take the corporation to court and instead must participate in arbitration in the event of any dispute.
It seems like a small thing. Arbitration is faster than a lawsuit, it is designed to expertly resolve particular issues that would fall within a contract dispute.
“What happened to my right to sue?” asks the consumer who now has one less arm as a result of the services received from the corporation.
“You waived that right, explicitly, right here,” says the lawyer, pointing to the applicable language in the contract.
“But this is obviously an unconscionable contract of adhesion I was forced to sign. Any judge should strike the whole thing down. Plus, I thought I can’t waive any legal right I have by signing a clause hidden in a twenty-five page mouse type contract,” protests the injured consumer.
“Tell me about it,” says the lawyer.
“So, nu?” says the wounded customer.
“The arbitrator doesn’t care about any of that, in fact, the arbitrator has no authority to even hear you complain about it,” says the lawyer.
“What the fuck?” says the consumer.
“You make a valid point,” says the lawyer, as the billable minutes tick off on the clock.
In addition to things like John Roberts’ arbitration clause, we now have the provision in virtually every contract, that if a court finds any single provision, or even multiple provisions, of the contract unenforceable, the rest of the provisions of the contract remain in full force and effect.
“Full force and effect,” says the lawyer, now also missing an arm and part of one leg.
In the very rare event that your important federal case eventually gets up to the Supreme Court, guess who at least two to four of the justices will rush to defend?
“Wait,” said the skeleton, “I know. The legally created fictional ‘person’– the psychopathic corporation. Am I right?”
As right as you get to be today, old man.