Perhaps very early in the process the judge can inform the plaintiff that he or she feels that punitive damages to the respondent would be warranted if the plaintiff continues with the claim but loses in court - this would be kind of a "point of no return"... "I think your lawsuit is bunk, but it's not such extreme bunk that I can throw it out. Instead, if you continue and lose, I'm going to make you pay for his attorney's fees - but if you back out now we'll just call it quits".
Judges can and do say things like that. It's not very unusual for a judge to warn a plaintiff that his or her case seems weak, and warn about attorneys fees awards.
if you'd couple this idea with clamping down on outsourcing and H1 visas that'd do the trick. right now plenty of megacorporations take advantage of the security and safety and market of the U.S. but they aren't paying the bulk of the taxes, the small guy is. time to take the fat cats to school
That would certainly help, but I think it's possible to end up with an oversupply of engineers. I mean, after a certain threshold, more of any specific profession doesn't add to society. There's a limit to how many bridges need building, circuits need designing, etc.
We spent most of the 80s and 90s giving tremendous amounts of money to Indian and Chinese exchange students (at the high school level) and student visa students (at the college level). None of the students on those visas were paying for their education, nor were their home governments sending them here.
Do you have any cites for this? I was in college during the 90s, and the exchange students I know had their tuition paid by their home governments. The vast majority of financial aid programs, including loans and scholarships, can only be given to US citizens.
If this went through you'd see a huge surge of unemployed or underemployed engineers. How many engineers have had to move into sales or marketing positions because that's all that's available? What exactly will more engineers do?
Uhh, you don't carry a balance. GP was explicitly referring to people who carry a balance and are thus subject to interest on their purchasers.
While GP mentioned the exhorbitant interest rates that kick in if you don't pay it off on time, GP's first assertion was an unqualified "credit card users are dumb".
To me, it appears credit-cards are designed to milk those who are stupid, or who are unable to control their urges sufficiently to do what is wise rather than what is smart. Zero interest for the first 30-60 days, and thereafter an interest that is out of this world (frequently literally 5 to 10 times the interest the same person pays on say their mortgage)
You're grossly simplifying things. I use a credit card, and pay off the balance when due. I do this for two main reasons, to build up my credit rating, and to earn various reward points for my card. What's the downside, and where's the "stupid"ity? I'm not paying any fees.
Courts are generally not too thrilled with either contracts of adhesion or terms that aren't bargained for, and in terms of an arbitration clause buried in fine print, between two parties with disparate bargaining position, it's unsurprising that a party's assertion that he couldn't really be bothered to look at it might be received sympathetically.
I'm curious how the contract system can work if every party can simply deny the terms by saying that they 'couldn't be bothered to read the terms.' If I'm missing it, I'm going to need more than your word for it, precedent or at least an explanation about how it'd survive would be okay.
Because just because someone makes a factual assertion doesn't mean it's going to be accepted. Contract law hinges on context; check out Restatement 2d of Contract section 211 for example. Courts are generally not too thrilled with either contracts of adhesion or terms that aren't bargained for, and in terms of an arbitration clause buried in fine print, between two parties with disparate bargaining position
I'm curious, did you read the case to understand the context my posts were made in, or did you just assume I was saying something that I wasn't and decided to correct the things I didn't say (or at the very least mean, but I definitely don't remember say "NO! It's no good if they don't sign it! It must be a signature, with ink and a pen!"...)
Remember this is a public forum, and not a private conversation; you've mentioned you were a law student, so you're asserting at least some degree of authority. Someone may read this and, not knowing any better, start believing that you really need to sign something to be bound by it. However, you have been asserting that you will always be held to a contract term that you didn't bother to read, which just isn't true, or at least -not- just in regards to this court's holding.
Okay, well following the entirety of this thread, I'm clearly NOT saying contracts require signatures.
You attempted to distill your argument into several main points, one of which "both parties must sign". Legal argument is about precision.
The law isn't going to weight a person's need for a cell phone as much as his need for medical care.
You're making an erroneous distinction. Just because thing A is more necessary than thing B doesn't mean thing B can't legally be a "necessity". Courts have found cars to be necessities, when looking at enforcement of contracts with children, and in some situations I'm sure a phone would qualify as well.
Thirdly, what rigidity are you speaking of?
Your statements regarding how ignorance of a contract term, or refusal to read it, can't be a defense to any degree, and if it was then contract law would be rendered moot. It's just not how the system works.
I've pointed this out before in similar clauses - the courts would never allow this because it reduces their powers.
Courts overwhelmingly favor arbitration clauses, and will go to great lengths to find them valid, as long as they think they'll be reasonably fair proceedings. It doesn't have much to do with giving up or retaining powers.
1.) Contracts require two parties. No contract signed by only one party is valid.
Contracts require acceptance by both parties, not signatures. While a signature is one of the most common means of showing acceptance, it's not the only way.
3.) A cell phone is a luxury
That's not really how it works; a cell phone can be a necessity, depending on the circumstances.
I think the argument that a 'mandatory arbitration clause' works to serve only one side, and those clauses should only be enforceable in contracts where it benefits both parties (i.e. AT&T isn't ever going to file class action suit against its customers, however, its customers could conceivably file class action against them, therefore only AT&T benefits by mandatory arbitration).
Any specific clause in a contract is probably going to serve only one side; the most important thing is that there is consideration as a whole to support the contract.
I'm not criticizing any viewpoint other than the idea that ignorance of a contract (particularly a luxury item), were it to be a valid legal defense, would make the entire subject of contract law a moot point.
Of course it wouldn't, ignorance of a contract term is material as to whether there was mutual acceptance of the contract. Contract law isn't quite so rigid as you seem to think.
And that last "A" stands for America, so they have no (legitimate) influence outside of the US
Huh? That doesn't make sense, it's just part of the name. You can call your organization the American Association for the Advancement of Americans if you wanted, but that doesn't mean you're not allowed to operate your organization elsewhere in the world.
A note to our American cousins : This was never the case when you were under British rule. If you ever get fed up of this litigous madness you're always welcome to re-join us and become part of United Kingdom of Great Britain;-)
Yes, been wronged? Stiff upper lip, be quiet, suffer in silence. It's the British way.
Unfortunately, this isn't RIAA v. Foster, it's Capitol v. Foster.
Or, fortunately. The RIAA is just a shell, if the expense ever got too high (and I don't think amounts of money this small would do it), they could just dissolve it. It's much harder to dissolve an ongoing concern like a record label.
So what's your solution to spurious lawsuits like SCO vs. IBM? This is a legitimate question. I'd love to know from your perspective if there is a workable solution, or if there is even a problem.
I think the most frustrating parts of the legal system involve the U.S.'s incredibly loose discovery rules. Discovery can cost millions of dollars, last years, and usually result in very little material that is actually important to the litigation. So placing more limits on discovery would make civil lawsuits go a lot faster and more efficiently.
I also think we need a lot more judges. What people don't always seem to realize is that a lawsuit might last 5 years, but the actual work done by both sides in it might in all that time add up to a month or so. The more judges, the faster cases should go, and the faster spurious lawsuits will end. This of course would require more actual court space, and more juries, but I think in the end it would be worth the added expense.
And both sets of lawyers will want to hurry things along; because as long as they're arguing, they won't be putting food on their tables.
This would be a bad idea. First of all lawyers are generally paid on a monthly basis as they do the work; very, very few law firms have the resources to wait until the end of every lawsuit before they can collect their money.
Secondly, a lawyer's job is to be an energetic advocate for their client. What you're saying here is that you should put the lawyer in a position where their own interests conflict with their client's. Your assumption is not that the lawyer will put their own interests first, but that this will be a good thing.
Thirdly, you're making the very common, but erroneous, slashdot argument that somehow lawyers themselves are the ones who overwhelmingly drive litigation. IAAL, and my firm doesn't go around looking for clients, they come here when they have a specific problem that they need help with. When a case is over you give a client their appeals options, and its their decision as to whether file the appeal.
'The SCO Group frightened potential business users away from Linux with lawsuits demanding billions in royalties. But the litigious company's claims were shot down in a ruling that will likely boost uptake of the operating system.'
So what's the excuse for the non-adoption of Linux for all those years before the SCO mess?
Re:Fair??? Language, please...
on
SCO Loses
·
· Score: 1
How many BILLIONS of dollars in lawyers fees
Zero. Come on, even a large case like this isn't going to generate anywhere NEAR that amount of attorneys' fees.
In the New Testament, three of the gospels, Matthew, Mark and Luke (which are merely rewritten copies of one another), say that Simon of Cyrene carried the cross for Jesus. John explicitly denies this saying "Carrying his own cross, he went out to the place of the Skull (which in Aramaic is called Golgotha)."
The way I had always been taught is Jesus started, but the Simon dude had to take over.
There is no way to reconcile these differences and say that each and every word of the bible is literally and historically true.
I think the Catholic Church came up with the best proposition; "everything in the Bible is true that needs to be true for the reader to attain salvation", or something along those lines.
I say this as an agnostic with an appreciation for theology.
For some reason your comment reminds me of something I read awhile back, how some doctors and lawyers who aren't so happy with their career paths feel trapped because they have invested so much time and money to get in that they feel they can't afford to leave.
Ooh, that's me. Only I kind of went into law school a little anxious about that, and had already decided that I didn't want to stay a lawyer my entire career. The loans, however, are pretty brutal.
I think my one advantage is that I don't really need to be rich. A lot of doctors and lawyers hate their jobs but get addicted to the affluence, which sort of feeds on itself. Bigger house, bigger mortgage payments, higher taxes; eventually you end up working 70 hours a week just so you can go to that expensive restaurant on the weekend during the one night you have free...
Slashdot Mirror
Perhaps very early in the process the judge can inform the plaintiff that he or she feels that punitive damages to the respondent would be warranted if the plaintiff continues with the claim but loses in court - this would be kind of a "point of no return"... "I think your lawsuit is bunk, but it's not such extreme bunk that I can throw it out. Instead, if you continue and lose, I'm going to make you pay for his attorney's fees - but if you back out now we'll just call it quits".
Judges can and do say things like that. It's not very unusual for a judge to warn a plaintiff that his or her case seems weak, and warn about attorneys fees awards.
As Carl Sagan said, "They laughed at Columbus, they laughed at Fulton, they laughed at the Wright Brothers. But they also laughed at Bozo the Clown."
if you'd couple this idea with clamping down on outsourcing and H1 visas that'd do the trick. right now plenty of megacorporations take advantage of the security and safety and market of the U.S. but they aren't paying the bulk of the taxes, the small guy is. time to take the fat cats to school
That would certainly help, but I think it's possible to end up with an oversupply of engineers. I mean, after a certain threshold, more of any specific profession doesn't add to society. There's a limit to how many bridges need building, circuits need designing, etc.
We spent most of the 80s and 90s giving tremendous amounts of money to Indian and Chinese exchange students (at the high school level) and student visa students (at the college level). None of the students on those visas were paying for their education, nor were their home governments sending them here.
Do you have any cites for this? I was in college during the 90s, and the exchange students I know had their tuition paid by their home governments. The vast majority of financial aid programs, including loans and scholarships, can only be given to US citizens.
If this went through you'd see a huge surge of unemployed or underemployed engineers. How many engineers have had to move into sales or marketing positions because that's all that's available? What exactly will more engineers do?
Look how well it's done with the US Government giving free educations to the Indians and Chinese; imagine if we gave it to Americans!
What exactly are you referring to?
Read: if you shoot INSIDE the fiber and along the line, you can get a lot of fiber in one shot.
Especially if you use a laser pistol...
Uhh, you don't carry a balance. GP was explicitly referring to people who carry a balance and are thus subject to interest on their purchasers.
While GP mentioned the exhorbitant interest rates that kick in if you don't pay it off on time, GP's first assertion was an unqualified "credit card users are dumb".
To me, it appears credit-cards are designed to milk those who are stupid, or who are unable to control their urges sufficiently to do what is wise rather than what is smart. Zero interest for the first 30-60 days, and thereafter an interest that is out of this world (frequently literally 5 to 10 times the interest the same person pays on say their mortgage)
You're grossly simplifying things. I use a credit card, and pay off the balance when due. I do this for two main reasons, to build up my credit rating, and to earn various reward points for my card. What's the downside, and where's the "stupid"ity? I'm not paying any fees.
Cut off the sentence:
Courts are generally not too thrilled with either contracts of adhesion or terms that aren't bargained for, and in terms of an arbitration clause buried in fine print, between two parties with disparate bargaining position, it's unsurprising that a party's assertion that he couldn't really be bothered to look at it might be received sympathetically.
I'm curious how the contract system can work if every party can simply deny the terms by saying that they 'couldn't be bothered to read the terms.' If I'm missing it, I'm going to need more than your word for it, precedent or at least an explanation about how it'd survive would be okay.
Because just because someone makes a factual assertion doesn't mean it's going to be accepted. Contract law hinges on context; check out Restatement 2d of Contract section 211 for example. Courts are generally not too thrilled with either contracts of adhesion or terms that aren't bargained for, and in terms of an arbitration clause buried in fine print, between two parties with disparate bargaining position
I'm curious, did you read the case to understand the context my posts were made in, or did you just assume I was saying something that I wasn't and decided to correct the things I didn't say (or at the very least mean, but I definitely don't remember say "NO! It's no good if they don't sign it! It must be a signature, with ink and a pen!"...)
Remember this is a public forum, and not a private conversation; you've mentioned you were a law student, so you're asserting at least some degree of authority. Someone may read this and, not knowing any better, start believing that you really need to sign something to be bound by it. However, you have been asserting that you will always be held to a contract term that you didn't bother to read, which just isn't true, or at least -not- just in regards to this court's holding.
Okay, well following the entirety of this thread, I'm clearly NOT saying contracts require signatures.
You attempted to distill your argument into several main points, one of which "both parties must sign". Legal argument is about precision.
The law isn't going to weight a person's need for a cell phone as much as his need for medical care.
You're making an erroneous distinction. Just because thing A is more necessary than thing B doesn't mean thing B can't legally be a "necessity". Courts have found cars to be necessities, when looking at enforcement of contracts with children, and in some situations I'm sure a phone would qualify as well.
Thirdly, what rigidity are you speaking of?
Your statements regarding how ignorance of a contract term, or refusal to read it, can't be a defense to any degree, and if it was then contract law would be rendered moot. It's just not how the system works.
I've pointed this out before in similar clauses - the courts would never allow this because it reduces their powers.
Courts overwhelmingly favor arbitration clauses, and will go to great lengths to find them valid, as long as they think they'll be reasonably fair proceedings. It doesn't have much to do with giving up or retaining powers.
1.) Contracts require two parties. No contract signed by only one party is valid.
Contracts require acceptance by both parties, not signatures. While a signature is one of the most common means of showing acceptance, it's not the only way.
3.) A cell phone is a luxury
That's not really how it works; a cell phone can be a necessity, depending on the circumstances.
I think the argument that a 'mandatory arbitration clause' works to serve only one side, and those clauses should only be enforceable in contracts where it benefits both parties (i.e. AT&T isn't ever going to file class action suit against its customers, however, its customers could conceivably file class action against them, therefore only AT&T benefits by mandatory arbitration).
Any specific clause in a contract is probably going to serve only one side; the most important thing is that there is consideration as a whole to support the contract.
I'm not criticizing any viewpoint other than the idea that ignorance of a contract (particularly a luxury item), were it to be a valid legal defense, would make the entire subject of contract law a moot point.
Of course it wouldn't, ignorance of a contract term is material as to whether there was mutual acceptance of the contract. Contract law isn't quite so rigid as you seem to think.
And that last "A" stands for America, so they have no (legitimate) influence outside of the US
Huh? That doesn't make sense, it's just part of the name. You can call your organization the American Association for the Advancement of Americans if you wanted, but that doesn't mean you're not allowed to operate your organization elsewhere in the world.
A note to our American cousins : This was never the case when you were under British rule. If you ever get fed up of this litigous madness you're always welcome to re-join us and become part of United Kingdom of Great Britain ;-)
Yes, been wronged? Stiff upper lip, be quiet, suffer in silence. It's the British way.
Unfortunately, this isn't RIAA v. Foster, it's Capitol v. Foster.
Or, fortunately. The RIAA is just a shell, if the expense ever got too high (and I don't think amounts of money this small would do it), they could just dissolve it. It's much harder to dissolve an ongoing concern like a record label.
So what's your solution to spurious lawsuits like SCO vs. IBM? This is a legitimate question. I'd love to know from your perspective if there is a workable solution, or if there is even a problem.
I think the most frustrating parts of the legal system involve the U.S.'s incredibly loose discovery rules. Discovery can cost millions of dollars, last years, and usually result in very little material that is actually important to the litigation. So placing more limits on discovery would make civil lawsuits go a lot faster and more efficiently.
I also think we need a lot more judges. What people don't always seem to realize is that a lawsuit might last 5 years, but the actual work done by both sides in it might in all that time add up to a month or so. The more judges, the faster cases should go, and the faster spurious lawsuits will end. This of course would require more actual court space, and more juries, but I think in the end it would be worth the added expense.
And both sets of lawyers will want to hurry things along; because as long as they're arguing, they won't be putting food on their tables.
This would be a bad idea. First of all lawyers are generally paid on a monthly basis as they do the work; very, very few law firms have the resources to wait until the end of every lawsuit before they can collect their money.
Secondly, a lawyer's job is to be an energetic advocate for their client. What you're saying here is that you should put the lawyer in a position where their own interests conflict with their client's. Your assumption is not that the lawyer will put their own interests first, but that this will be a good thing.
Thirdly, you're making the very common, but erroneous, slashdot argument that somehow lawyers themselves are the ones who overwhelmingly drive litigation. IAAL, and my firm doesn't go around looking for clients, they come here when they have a specific problem that they need help with. When a case is over you give a client their appeals options, and its their decision as to whether file the appeal.
'The SCO Group frightened potential business users away from Linux with lawsuits demanding billions in royalties. But the litigious company's claims were shot down in a ruling that will likely boost uptake of the operating system.'
So what's the excuse for the non-adoption of Linux for all those years before the SCO mess?
How many BILLIONS of dollars in lawyers fees
Zero. Come on, even a large case like this isn't going to generate anywhere NEAR that amount of attorneys' fees.
In the New Testament, three of the gospels, Matthew, Mark and Luke (which are merely rewritten copies of one another), say that Simon of Cyrene carried the cross for Jesus. John explicitly denies this saying "Carrying his own cross, he went out to the place of the Skull (which in Aramaic is called Golgotha)."
The way I had always been taught is Jesus started, but the Simon dude had to take over.
There is no way to reconcile these differences and say that each and every word of the bible is literally and historically true.
I think the Catholic Church came up with the best proposition; "everything in the Bible is true that needs to be true for the reader to attain salvation", or something along those lines.
I say this as an agnostic with an appreciation for theology.
"We let you down with XP,"
No you didn't, that implies that we had expectations of you.
For some reason your comment reminds me of something I read awhile back, how some doctors and lawyers who aren't so happy with their career paths feel trapped because they have invested so much time and money to get in that they feel they can't afford to leave.
Ooh, that's me. Only I kind of went into law school a little anxious about that, and had already decided that I didn't want to stay a lawyer my entire career. The loans, however, are pretty brutal.
I think my one advantage is that I don't really need to be rich. A lot of doctors and lawyers hate their jobs but get addicted to the affluence, which sort of feeds on itself. Bigger house, bigger mortgage payments, higher taxes; eventually you end up working 70 hours a week just so you can go to that expensive restaurant on the weekend during the one night you have free...
Since when do federal laws that have lower standards override higher standards at the state level?
It's the doctrine of Federal preemption, and it's been around for a while. Here's a good explanation.