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They say you can’t legislate morality. Even if that sentiment usually means you shouldn’t legislate morality, there’s a kernel of truth: A society where good manners are mandatory is missing the point.
That’s why the latest law passed in Sacramento to protect consumers is such a mixed blessing.
Assembly Bill 2365, recently signed by Gov. Jerry Brown, will stop businesses from sneaking into their terms and conditions for service a waiver of customers’ rights to speak ill of them. Companies cooked up the loophole as a way to pressure people from posting negative online reviews. In several instances, some litigated in court, a business even levied three or four-figure fines for the badmouthing.
That kind of shameful practice has no place in a contract – certainly not buried in the fine print. True, the onus is still on the customer to read through online terms and conditions instead of simply checking the box and clicking through. Nevertheless, it’s reasonable to expect that a merchant won’t embed perverse and oppressive terms into a transaction. In restoring reasonableness to California contracts, AB2365 narrowly legislates ethics, if not outright morality, in a manner almost anyone can support.
On the other hand, it’s frustrating that any legislature would have to police businesses so intimately – at a time when legalese and arbitrary contracts have become the norm in so many industries. In fact, consumers are impacted by clever contractual wording in a myriad of ways, some of which are even more troubling than hard-to-enforce penalties for negative online reviews.
Forced arbitration clauses, for instance, are increasingly common features of big business contracts. As the National Association of Consumer Advocates points out, such clauses are routinely found in contracts for everything from insurance to car loans to credit cards and investment accounts.
This summer, the California Supreme Court largely upheld arbitration clauses that require employees to waive any right to a class-action lawsuit. But if it’s one thing to shelter companies from debilitating claims brought by workers on at-will contracts, it’s another to deprive consumers of traditional legal recourse against those with whom they do business.
The stakes are raised even higher when, as now, so many key industries are dominated by a few giant firms, which can agree to take away customers’ ability to sue. There’s little doubt that paranoia over lawsuits is reasonable in its own way. But the culture of excessive litigation that wracks California and the country at large is no excuse for abuses and excesses in the other direction.
There’s something especially rotten about legalese designed to wipe out lawful complaints – whether in or out of court. AB2365 takes a broom to a relatively small corner of that dirty world. But the corrupt view of contracts that dominates too much of the private and public sector won’t change for good unless our culture changes first.