Arbitrate the bastards

It seems that when Blogger crashed it not only ate one of my posts but another I had scheduled for yesterday since I knew I wouldn't be able to post. Which leads me to what would happen if I sued Google, the owner of Blogger, for everything they're worth. Which in turn leads me to AT&T Mobility v. Concepcion.

The facts of the case as I understand them and was taught to succinctly state them in an undergrad con law class are these: The Concepcions bought mobile phones, the opiate of the modern proletariat, from AT&T. They were supposed to get the phones for free per advertising, but AT&T charged California sales tax. How sales tax was AT&T's fault rather than the state's I'm unsure, but at any rate they sued AT&T. AT&T pointed to a clause in the deal requiring arbitration. The Concepcions ignored this and turned the suit into a class action.

The Federal Arbitration Act, which dates from the 1920s, provides that companies may require individual arbitration, but California law had carved out exceptions for arbitration clauses which were unconscionable in various ways. The Supremes held that the California law was unconstitutional and arbitration may be required.

Back to my favorite topic, me. I'm sure that Google employs good enough lawyers that in the unlikely event I could hold them responsible for the Blogger outage at all, but if so, I'd have to go to arbitration in California to do it rather than rounding up everyone affected and making a class-action out of it.

Is that just? The press, even the Wall Street Journal article I read, suggested it was not. Many small claims will now simply be too expensive to pursue, and there is no effective mechanism now to prevent companies from making millions on nickel-and-dime misbehavior.

Before I get to my answer I'd like to point out something most people, including the liberal half of the Supreme Court, don't seem to get: they're not there to be just but to say what the law is. If the law is unjust it's the fault of its drafters and in this case the Arbitration Act is a simple federal law which Congress can fix in the unlikely event it quits squabbling over Planned Parenthood funding long enough to be bothered. Don't blame the justices who did their jobs; I haven't read the decision closely, but I'm sure they'd like to be able to sue AT&T too.

Anyway, my answer is the the cynical one: no outcome here could actually be fair to individuals who are wronged (assuming the Concepcions were). If you go to arbitration with an arbitrator paid by the corporation who you probably have to travel to see, you will be out of luck regardless of what happens. If you file a class action and lose, you are out of luck. And if you file it and win, the lawyers take all the money, you get a check two months later for $0.63 or a coupon for another free el cheapo phone (sales tax not included), and you are essentially out of luck.

And that is why I'm not an anarcho-capitalist.