by Jeff Sovern
Probably my favorite podcast is Ballard Spahr's Consumer Finance Monitor Podcast. I learn a tremendous amount from it. Yes, it favors the industry view, as it is certainly entitled to do, but many episodes are devoted to interviewing consumer advocates as well. If you don't listen to it, and you like this blog, you are missing out.
Which brings me to the latest episode, titled "Has America’s civil justice system crashed? A conversation with special guests and consumer advocates Harvey Rosenfield, President of the Consumer Education Foundation, and Laura Antonini, Policy Director of #REPRESENT." About eleven minutes into that episode, Alan Kaplinsky, a leading industry lawyer, and the person credited with inventing the strategy of using arbitration clauses to prevent class actions says: "I acknowledge that very few people actually read [consumer contracts]. I know I don't read contracts that I sign or become subject to." I suppose this shouldn't be a surprise given that consumer law professors often don't read consumer contracts and that other legal luminaries, like Chief Justice Roberts and Hillary Clinton have said they don't read fine print. But given that the Supreme Court has said arbitration is a matter of consent, it is hard to reconcile the fact that not even the industry lawyers read these things with the idea that everyone nevertheless consents to them. Courts often impose a duty to read but when we will accept–and act upon–the reality that this is a duty practically no one ever lives up to?