Buried in the late August inboxes of e-bay users is an e-mail explaining e-bay’s new terms of service, most notably its “Legal Disputes” resolution provisions. Not surprisingly, users are instructed that all legal disputes may only be pursued as individual actions against e-bay in arbitration.  In an effort to window dress the “reasonableness” of its arbitration provisions, e-bay actually permits users to “opt-out” of its arbitration clause.  But here is the comically absurd part. 

First, although e-bay, an “e” company, can e-mail you the change in its terms of service, e-bay users must physically mail, within 30 days, a signed letter notifying e-bay of the user’s intent to opt out of the arbitration clause. Second, if you successfully opt out, any claim you may bring in the future must be brought in Salt Lake County, Utah. How convenient.

Aside from the corporate immunity that arbitration clauses confer on e-bay and its kindred spirits, this process begs the larger question of why the waiver of our 7th Amendment right to trial by jury for matters in controversy in excess of 20 dollars is something  we can waive by an e-mail we never read or see and is something we must affirmatively opt-out of in writing. This is entirely backwards.  A fundamental right set forth in the Bill of Rights is something a consumer should knowingly waive, in writing, and opt-in to. Absent doing nothing, the default is that the 7th Amendment must be preserved. Opt-out arbitration clauses are forced arbitration clauses in sheep’s clothing. They are unfair, unjust, and un-American.