Ima,

I have no such bias towards the rich – in fact, I myself am not remotely wealthy. I am holding a principled position… which happens to show up more when dealing with the wealthy because a) they make more transactions, and b) they’re the only ones worth trying to rip off.

I will reduce the analogy as far as I can to help you out:

Car makers can make 3-wheeled cars, but it would be financially ruinous, so they, of their own free will, choose not to.

Car sellers can sell cars without an arbitration clause, but it would be financially ruinous, so they, of their own free will, choose not to.

Car BUYERS can buy cars with three wheels if they can find someone to make it for them for the amount of money they are offering.

Car BUYERS can buy cars without an arbitration clause if they can find someone to sell it to them for the amount of money they are offering.

It really boils down to this, Ima:

Arbitration clauses are “imposed” by whom?

The car sellers? They actually force you to buy their cars?!? No, you choose to buy their cars. If the deal is not to your liking, you can refuse. You can offer to buy their car without an arbitration clause, and, if the offer is not to their liking, THEY can refuse.

There is no “imposing” at all in this situation. Both sides are free actors.

“Freely negotiate” has to include the right to say “no deal” if it’s to mean anything at all. Not all free negotiations result in success – sometimes the parties’ desires are just plain incompatible.

I bet if Ms. Mencimer had offered a $1,000,000 bonus to forgoe the arbitration clause she would have eventually found a dealer who would take it. But her article seems to indicate that she never offered any bonus at all for her desired contract modification; she seemed to expect it to just be given to her for free. She freely negotiated and found noone willing to sell to her what she wanted at the price she was willing to pay. Oh well.

I’ll just finish with this: The message and underlying point of the Mother Jones’ piece was clearly wrong. Merely because all dealers specify the same provision in a contract does not in anyway mean that the government has to get involved.

Second, arbitration agreements (generally) help consumers because they lower the cost litigation which end up lowering the cost of the product.

My point is that there is no reason to create a hypothetical world, where an insane person unreasonably wants a three wheeled car, in order to defeat Stencimer’s argument. Defeat the argument on its merits, not by making an absurd attempt at analogy!

That’s a stretch of the word imposed. Once again, while a three wheeled vehicle does not reasonably exist in the real world, the US court system does reasonably exist. Thus, the two circumstances are not analogous. It’s that simple.

“If you find the analogy distasteful, take it up with Professor Baird”

I did not find the attempt at analogy “distasteful.” As explained, I found it without any analogous counterpart in reality. I found it utterly invalid. And merely appealing to authority in no way makes it so. (Not that any appeal to authority ever saves an argument in and of itself!)

“no reason for government intervention.”

I must be slow today, I had not thought of this point until now. You claim there is no reason for government intervention. (I probably agree with you, I was just responding to the poor argument by analogy that was made.)

However, when a rich woman freely accepts an offer of contingency fee, you think there should be government interference. You think people should not be allowed to freely chose to accept an offer of a contingency fee from an attorney. You think the government should intervene and impose “fiscal duties” on the lawyers and that any such contracts freely entered into should be voided.

Once again your bias is showing.

It’s possible to offer a car on different terms and conditions. So what? Why does that change the right of the seller to offer the terms and conditions he does?

Please devote Graubard v. Miller discussion to one of the three posts discussing that case.

No, because your attempt at analogy failed. It’s not analogous so it’s complete nonsense and proves nothing. Since when does a failed argument prove anything? (Other than the contrary of the point attempted to be proved, of course!)

“It’s problematic when the lawyers, who have a fiduciary relationship to an existing client, renegotiate an existing agreement to the client’s disadvantage.”

“meaning that they had a fiduciary obligation to her… WHICH THEY VIOLATED. “

First, of all, there has been no ruling that anything has been violated. For some reason, I guess because a rich person is being harmed, you want to jump to that conclusion, but it’s not been shown as of yet.

Second, if the rich lady did not like the offered, not imposed, contingency fee agreement, she was completely free to turn it down. She did not, she accepted it.

In this car dealership case, the buyer cannot chose between arbitration and not, it’s imposed. Thus, there is no freedom of negotiation on this point. But, apparently because a rich person is not being harmed, that’s perfectly OK.

“3-wheel cars clearly do exist.”

Ok, let’s get semantical, if that’s the depths you want to take. Sure, three wheeled cars are logically possible. They may even be produced somewhere on this planet, but they are not reasonably available. Unlike our court system which is. Thus, it is not analogous. To assume that the car manufacturers of the world would have to redesign and retool their factories to make a three wheeled car for one person is nonsense. However, the court system is already set up in the US and is fully in place ready to hear disputes of law and fact.

“I followd the arguments of the original post, and they are quite sound.”

So you consider arguments by analogy to be “quite sound” even when they are clearly not analogous to the real world?! I can’t really say anything to that point that hasn’t been said already.

“But when the common-man wants to freely negotiate a contract with a dealer, but is unable to, that’s a good thing.”

There is inded complete and free negotiation going on here! Where is the GOVERNMENT intrference? Just because no sane auto-dealer will sell a car to you without an arbitration clause DOES NOT MEAN that people are not “freely ngotiat[ing]”. Free negotiation goes BOTH ways, and the car dealers freely refuse any deal without an arbitration clause. Neither party is bound to accept the terms desired by the other… they can both walk away.

“When a rich woman freely negotiates a contract with her lawyers, somehow it’s a bad thing.”

Except that she ALREADY had a contract with the lawyers in question, meaning that they had a fiduciary obligation to her… WHICH THEY VIOLATED. That is to say, the creation of the second contract in this way was a clear violation of their duties incurred by the first contract – thy had to violate the first contract to even OFFER the second.

“So while demanding something from a retailer that does not exist is clearly stupid, demanding something that does exist is completely reasonable.”

3-wheel cars clearly do exist… it’s just that car-makers don’t bother to make them for financial reasons. Selling a car without an arbitration clause is quite analogous to that – no on chooses do so, because it would be financially ruinous.

I’ve a very conservative/libertarian fellow; in fact, I am practically the anti-thesis of “liberalism” as it currently exists in this country. I followd the arguments of the original post, and they are quite sound.

1) The Mencimer/left-wing complaint about mandatory arbitration clauses is that they are “contracts of adhesion” and that consumers do not have the choice to modify them. The three-wheeled example demonstrates that that alone is no reason for government intervention.

2) It’s perfectly alright for a woman, rich or otherwise, to negotiate a new contract with her lawyers. It’s problematic when the lawyers, who have a fiduciary relationship to an existing client, renegotiate an existing agreement to the client’s disadvantage. The auto dealer is operating in a market environment. The attorney has asked for and received government-imposed barriers to entry on the grounds that he is supposedly serving a higher purpose than mere market profit. The contract is perfectly alright as a contract; the attorney’s self-imposed ethical obligations are in question. It has nothing to do with the wealth of the party, though attorneys who have received $7 million in schnorred gifts from their clients are generally wealthier than used-car dealers.