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In Focus: War on Christmas? Bah, humbug!

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E. coli outbreak linked to Chipotle expands to Pennsylvania

<p>Nearly two million Pennsylvanians voted in last month&#8217;s election to fill five statewide appellate judgeships. Unfortunately, much of what these and trial judges and magistrates are elected to do is silently being taken away from the people&#8217;s justice system by corporations and other powerful forces.</p><p>Once, during a far less modern time, disputes were settled by crude and unfair means, such as trial by combat, where the stronger party inevitably prevailed despite the merits of the case. It took generations for our current system to evolve to the point where individuals and ordinary people could face down any person or entity, no matter how big or powerful, which may have done them wrong, in a public courtroom with other citizens sitting as jurors.</p><p>However, in recent years, the business-friendly U.S. Supreme Court led by Chief Justice John Roberts has reversed course by approving efforts to bypass the public justice system. Now, non-negotiable paragraphs and clauses drafted by private counsel have become the strongest weapon of choice for corporate Goliaths to channel disputes into a system where the scales of justice do not pertain.</p><p>In place of judges, juries and open courts, which fulfill our constitutionally established third branch of government, these special interests have, with ever-increasing success, imposed an alternative private system of dispute resolution that better serves their purposes rather than the interests of society as a whole.</p><p>As revealed recently in a detailed investigative series by The New York Times, these special interests led by financial services, telecom, credit card and healthcare companies have used their power to insulate themselves from the opportunities and consumer protections which centuries of jurisprudence have managed to bestow as given rights. Their primary tool is an arbitration system made mandatory through the deeply buried fine print of non-negotiable contracts. Arbitration places final resolution of disputes into the hands of a single individual or small panel of individuals instead of juries.</p><p>Although justified as saving time and expense, in far too many cases this privately financed and run arbitration system has proven to be laced with conflicts of interest and rigged against those who have been financially harmed or physically injured. Most of these systems lack the procedural rules and safeguards developed over many years by legislatures and courts. Tools to help those who bring complaints, such as discovery under oath, are often prohibited or greatly limited.</p><p>Arbitrators may be untrained, ignore precedence, and their decisions are often kept secret and not subject to appeal or other review no matter how wrongly or mistakenly made. Secrecy is particularly preferred by those businesses that don&#8217;t want either the facts or the scope of their wrongdoing to come to light.</p><p>The result of this contractually required, rather than mutually agreed upon, privatization of our civil justice system has been the tipping of the scales against ordinary individuals and their claims, with predatory or dangerous practices being shielded from just relief.</p><p>Ironically, big businesses that sue other businesses have been clogging court systems all over the country. That is because the business community, rather than turning to the mandatory arbitrations they prefer when they are being sued, prefer the public justice system when they seek to sue someone else. Moreover, in many places they have proposed that states establish publicly funded special privilege courts just for themselves.</p><p>Fortunately, as stories of the inequities of mandatory arbitrations have become more well-known, there has been a growing awareness of the need for remedial action. In various jurisdictions and in Congress, legislation has been introduced to limit or ban contracts that require people to give up their right to a jury trial in favor of arbitration. However, as with most legislation reining in the rich and powerful, these efforts are being met with stiff resistance from those who wish to maintain this further means of corporate welfare.</p><p>More must also be done by the judicial branch on behalf of the people it serves. Courts need to return to a time when one&#8211;sided, non-negotiable provisions were viewed with deep skepticism as being the product of greatly unequal bargaining power, and voided as being contracts of adhesion and against the public interest.</p><p>Justice is a precious commodity that the founders of this nation proudly established as a core purpose of government in the Preamble to the Constitution, and strengthened in the Bill of Rights. Those broad principles, which benefit us all, should never be diminished by the insidious fine print of self-serving contracts.</p><style>
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<div class="metaInfo"><bylineMeta><p>David I. Fallk</p><p>Contributing Columnist</p></bylineMeta></div><div class="metaInfo"><shirttailMeta><p>David Fallk is a Scranton attorney.</p></shirttailMeta></div>

David Fallk, Opinion: Arbitration system tips scales of justice against ordinary citizens