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Jamie Leigh Jones’s unbelieveable ordeal should give many libertarians long pause. She was drugged, raped, beaten, and later imprisoned by KBR in Baghdad. KBR argues she has no legal recourse because she signed a binding arbitration agreement when she became an employee. http://www.dailykos.com/storyonly/2007/12/19/162652/29/685/424439
Jones testified:
“There has been no prosecution after two and a half years. The arbitration laws are so abusive that Halliburton is trying to force this into a secret proceeding, which will do nothing to prevent continued abuse of this nature. What is there to stop these companies from victimizing women in the future? The United States has to provide people with their day in court when they have been raped and assaulted by other American citizens. Otherwise, we are not only deprived of our justice in the criminal courts, but the civil courts as well. The laws have left us nowhere to turn.”
When people work for “private contractors” they apparently give up all their legal rights. Raped, beaten, severely injured, imprisoned – and because she signed a binding arbitration agreement with corporate goons, she likely has no recourse with a government that never met a corporation it didn’t want to help, or a citizen it didn’t want to screw. When she went to a company supplied psychiatrist, the first question she was asked was whether she planned to sue.
Evidence of the absolute moral depravity of the American right wing in all its guises? Yes. But she also would have no recourse in many versions of a pure “libertarian” society, either.
Libertarianism needs a theory of power able to confront concrete realities and not just the abstract equality of contracts considered without attention to context. The concept of arbitration among genuine equals has great merit. When applied to formal equals who in reality are anything but equal. It leads to atrocities such as what happened to Jamie Leigh Jones.
(There was an edit change due to my confusion of last names... the"duh" in diZerega)
Well, of course, dueling grew out the fabric of the society it existed in, a society dominated by a warrior-aristocracy. The aristocracy, deriving its status from the practice of arms, naturally tended to regard fighting as a self-justifying activity, and, to the extent feasible, it incorporated the rising middle classes into its value system. In France, Cardinal Richelieu's attempts to legally suppress dueling in France in the 1620's were a long term failure. Dueling survived the upheavals of the French Revolution. "New classes," such as lawyers and journalists, fought duels as a means of becoming accepted. The same went for the militant feminists. The system lasted until August 1914, with occasional and mostly nonfatal incidents since the First World War. For the most part, the sheer scale of the war rendered dueling ludicrous.
The English experience was a bit different, because, of course, England was the only major European nation which got from the agrarian world of the early eighteenth century to the late twentieth century without a violent political revolution. Dueling died out in England, perhaps in the 1830's or 1840's, mostly as a byproduct of a redefinition of the identity of the upper class, and this was bound up with a whole series of other things, such as the Reform Bill, Catholic Emancipation, etc. The upper class went through a kind of "great awakening," if that is the right word, in the late nineteenth century, and picked up a lot of evangelical religious fervor from the lower middle class, and adopted a lot of the kinds of notions you find in the Boy Scout movement. It was immensely important to play cricket with the villagers. There were incidents later, of course, involving people who were a bit slow to get the message.
German student dueling was a special case-- it is debatable whether it was really dueling, or something more akin to the Plains Indian Sun Dance. At any rate, it survived in a limited way into the 1970's.
Sheldon Richman -
12/26/2007
This of course is horrible. But aside from the physical assaults on the non-dueler, which of these acts would you have the state act against? The insults? The non-association? Clearly, this was a social-cultural phenomenon that called for a social-cultural solution.
Andrew D. Todd -
12/25/2007
Well, for starters, the usual penalty for refusing to fight a duel was ostracism, shunning, and possibly loss of employment or business. There was a whole ritual of "posting," that is, grossly insulting someone in a public place, so that if he refused to fight, the refusal would be a matter of public record. Typically this involved a slap in the face, or a horsewhipping or caning, or throwing a glass of wine in the refuser's face. Once on the dueling field, there are accounts of the "seconds" sometimes more or less physically dragging their man forward into battle, because it would have been to their discredit to be associated with a known coward.
Here we are, I found an e-text of Joseph Conrad's "The Duel (A Military Tale)," which was made into the film _The Duelists_. If you read it, I think you'll find that the story takes place in a somewhat more alien world than you might imagine.
This presents no problem that I can see. If someone changed his mind after signing a dueling contract, you could not compel performance, for the same reason you can't compel someone to mow your lawn after promising to do so. (See Rothbard's contract articles.) That would be slavery. To discourage backing out, one could ask that a performance bond be posted.
Andrew D. Todd -
12/24/2007
Well, tell you what, I'll just throw out another curve ball. Consider dueling. It was a contract of death, in which the parties agreed to try to kill each other. It was not unknown for them to put the contract in writing. The combatants sometimes formulated rules, appointed referees, etc., in short all the usual business of an organized sport. Depending on the time and place, dueling might be officially permitted and even sponsored; illegal but tolerated; or energetically suppressed. Discuss.
V.G. Kiernan, The duel in European history: honour and the reign of aristocracy, Oxford University Press, Oxford, 1988. A fairly straightforward Marxist treatment.
Francois Billacois, The duel: its rise and fall in early modern France edited and translated by Trista Selous, Yale University Press, New Haven, Conn., 1990. Stressed the notion of the duel as anachronistic political sedition, a challenge to the state's right of justice.
Also, you might look at Joanot Martorell, _Tirant Lo Blanco_, 1490, trans. David H. Rosenthal, 1984. A fifteenth century Catalan novel, didactic novel, one might add, and a best seller in its day. _Don Quixote_ is considered to be in large part a satire of _Tirant Lo Blanco_. At any rate, large sections of _Tirant Lo Blanco_ form a kind of doctrinal manual for the practice of knighthood in the fifteenth century, with emphasis on tournament fighting and judicial combats.
And of course, Joseph Conrad's, "The Duelists." The fictional D'Hubert and Feraud are loosely drawn upon the historic Dupont and Fournier. It is about a duel which lasted, in repeated bouts, for about fifteen years. The Harvey Keitel/Keith Caradine movie of the same title is a remarkably good adaptation.
A contract, short of a slave contract, freely entered into?
Otto M. Kerner -
12/24/2007
It doesn't seem obvious to me that, in a private law society, no court would ever declare this sort of contract to be null and void. That's why Todd's comment strikes me as relevant.
Sheldon Richman -
12/24/2007
I don't see how Mr. Todd's comment is relevant to free-market anarchism, in which there is no government court to declare a contract null and void or in which crimes are reduced to torts warranting restitution only (including for pain and suffering), and not retribution.
This woman finds herself in a bad situation. What she needed was more competition for her labor services, so she could have bypassed companies demanding arbitration in such cases. A real free market would have maximized her options. But even if she accepted the same deal in an anarchist society, it would not be the end of the story. Friends of justice could bring disrepute to the company through a public-relations campaign and stage boycotts. This fit into Roderick Long and Charles Johnson's "thick libertarianism."
Otto M. Kerner -
12/24/2007
Well, libertarians have never claimed (at least not on their more cogent days) that everything will be perfect or that there would be no problems in a libertarian world. So, the bare suggestion that something like this might be a problem in a libertarian world, I'm afraid, doesn't mean much to me.
Gus diZerega -
12/23/2007
Thank you for the clarification. I hoped the law would make that distinction, and KBR's argument would fall apart legally. Given that they 'disappeared' the physical evidence beyond Jones' medical reports I still wonder whether the company and its goons will get the punishment it deserves.
William Stepp argues Andrew Todd's examples exonerate libertarian theory of my "indictment."
Perhaps he thought I blamed libertarianism for what happened, which I did not. That is the only context in which the term "indictment" might make sense.
I would use the term "theoretical weakness" to describe libertarianism's inability at present to address this kind of problem, that would presumably still apply in a stateless environment.
I used the Jones case primarily as an example of problems arising when there are differences in concrete power between formally equal contracting parties. In this case, a binding arbitration contract between a unusually wealthy company with many overpaid lawyers, and an 18 or 19 year old military wife.
(Jones, by the way, has reported that since she went public with what happened to her many other women have told her of similar treatment. KBR has a track record apparently.)
This part of my argument emphasized the inadequacy of an overly abstract theory of power for dealing with substantial differences in concrete power between parties in the context of the supposed superiority of binding arbitration over government courts.
I still await anyone wanting to argue either that such inequalities are unimportant or offering a libertarian theory of power able to discuss them.
There is another argument lurking here that again has raised its head. Just what can we contract away? Given the number of libertarians I have met who supported (voluntarily) selling yourself into chattel slavery, I suspect some would denounce the court cases Andrew Todd describes as interfering with the sanctity of voluntarily arrived at contracts.
In this instance government courts apparently stepped in to preserve freedom and decency in just the kind of concretely unequal situation I am concerned with. The government was needed to prevent abuses of the power of contract - and while the initial case was hardly an "indictment" of libertarianism, that government courts stepped in to end these abuses is hardly a point in its favor, either.
William J. Stepp -
12/23/2007
Exactly. The failure here was the government's failure to enforce the criminal law in whatever jurisdiction was relevant. It was in no way an indictment of libertarianism.
Andrew D. Todd -
12/23/2007
I am not a lawyer (IANAL), but people here seem to be shaky on the difference between a criminal offense and a tort. An unlawful contract, or a contract against public policy, is invalid, and thus an agreement to arbitrate such matters is also null and void. The victim did not have the legal competence to consent. By analogy, a police officer who is called to a domestic violence case, and finds the wife obviously battered but unwilling to press charges can and will arrest the husband anyway. The wife does not have the legal capacity to consent to being beaten up. In failing to immediately place the matter in the hands of some representative of the government, KBR may very well have committed Obstruction of Justice or some similar offense. I think you would probably find a leading case involving a "contract" signed by the inmates of a brothel or something like that, and I rather doubt it did the pimp any good.
------------------------------------------ http://en.wikipedia.org/wiki/Arbitration http://en.wikipedia.org/wiki/Arbitration#Arbitrability
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The South Carolina Supreme Court, in Chassereau v. Global-Sun Pools, Inc, held that "... this Court will refuse to interpret any arbitration agreement as applying to outrageous torts that are unforeseeable to a reasonable consumer in the context of normal business dealings." This was an analogous case. The defendant installed what was alleged to be defective workmanship. When negotiations broke down, an employee of the defendant engaged in systematic harassment, bordering on criminal in character, and this was found to be beyond the scope of the arbitration agreement.
True enough - and you'll notice that when power between the two parties is relatively equal I support binding arbitration agreements over civil matters when they are agreed upon in advance.
But read in some depth about the Jones case and you will see behavior we once expected in Soviet courts, but not our own legal processes.
The difference between courts and binding arbitration is fairly simple. Setting aside the not inconsiderable issue of corruption, even under ideal circumstances, as creatures of the market, arbitration agencies are compelled to offer their services on the basis of greater monetary efficiency - they give greater value per dollar spent. They save money. Etc.
A case can be made for both monetary and other kinds of efficiency as a major relevant value in civil cases. But unless you are a complete act utilitarian (NOT even a rule utilitarian) efficiency cannot count for much in criminal cases. It must be subordinated to justice, and at a minimum justice is fairness which means receiving equal treatment concretely and not just abstractly. This is the ideal - and the failure of our courts to live up to it has sometimes led to reforms that, if hardly leading to perfection, at least improve the odds a bit. Gideon's Trumpet is a classic story of this process at its (infrequent) best.
Justice cannot receive similar weight in binding arbitration agreements between unequal partners.
And here is where my points about power, and the inability of most classical liberals to effectively discuss it, rush into center stage.
Jule R. Herbert -
12/21/2007
There is certainly nothing more "binding" than the government-run court system. Expensive, time-consuming, politician judges, conscripted juries; a pure crap shoot, at best.
Altogether something to be avoided.
Gus diZerega -
12/21/2007
For some reason my reply to S. Dagnal Rowe appeared above - so I'm moving it down. . .
I think S. Dagnal Rowe is correct to a point. Just what rights are alienable? I would argue NO basic rights are alienable. Thus, for issues involving basic rights, binding arbitration is a nonstarter. I think we agree here.
But even for alienable rights I would submit the power issue still holds, though not as tragically. When both parties are reasonably equal in relevant resources I think the case for binding arbitration as superior to courts is compelling. But when there is a differential in economic power and experience at being a customer of arbitration firms, the strength of the argument weakens..
Gus diZerega -
12/21/2007
We are getting away from my reason for the post - does libertarian and classical liberal theory in general have a theory or concept of power adequate to address the issues people actually face in their lives.
Given how much libertarians talk about power and its abuse, this is a pretty basic issue - and Jone's ordeal is a good example of an event that is quite conceivable in a world ordered by principles of binding arbitration.
I doubt libertarians would say that abuse of power is whatever the law says it is...
Jule R. Herbert -
12/21/2007
Seems to me there are enough issues for the "law," concerning the ordering of conduct among and between strangers. And creating "default rules" such as the uniform commercial code.
As between non-strangers and where they have agreed among themselves as to how to conduct their relationships, there should be a huge presumption in favor of giving them the liberty to do so.
Gus diZerega -
12/21/2007
I think S. Dagnal Rowe is correct to a point. Just what rights are alienable? I would argue NO basic rights are alienable. Thus, for issues involving basic rights, binding arbitration is a nonstarter. I think we agree here.
But even for alienable rights I would submit the power issue still holds. However in these instances the case for binding arbitration is much stronger. When both parties are reasonably equal in relevant resources I think the case for binding arbitration as superior to courts is compelling.
Gus diZerega -
12/21/2007
The issue of KBR’s relation to the government and how it gets its money is 100% irrelevant. ANY company could have such an employment contract. Neither Aeon nor I have any liking for the thugs and fascists that run the United States. But we are discussing an institutional alternative to government courts – binding arbitration.
I brought this issue up because of the enormous disparity of power (in any sane way you measure it) between Jones and KBR. This kind of disparity is unlikely to be absent in the fantasy world of anarcho-capitalism.
Thus the importance of considering how unequal power can influence outcomes. The moral case for a libertarian society as I understand it rests on the moral equality of individuals – hence the problem with handling issues involving children. But at least for normal adults the case is pretty strong and I agree with it. It is at its strongest when considering voluntary transactions between two informed adults each of whom have reasonable alternatives. The farther you get from this ideal the more problematic a pure libertarian model becomes – the harder libertarians have to argue in trying to make their case.
Moral equality can be purely formal – Bill Gates and I have equal rights. But it also can have a substantive content. Two people hit two peaceful people in a bar. One was a complete stranger just sitting there, the other had beaten a close friend years before. Should that difference in context matter in determining punishment? Many people would say yes. I would.
Concrete power differentials such as that between Jones and KBR are invisible when observed sufficiently abstractly. This, I submit, is a serious challenge for libertarian theory, especially that which sees itself allied with the right.
Aeon J. Skoble -
12/21/2007
I’m afraid I don’t see how this is a problem for libertarianism. Since we do not have a libertarian society, pointing to some bad (real) thing as if it were a counter-example to the principles of libertarianism is a non-sequitur. Even given our current society, semi-paternalist and with a state monopoly on courts, there was no legal barrier to Halliburton employees signing “you can’t sue no matter what” contracts. So this incident seems like a black eye for the extant system, not for some imagined alternative system. In fact, it strikes me as implausible that, in a polycentric-law/free-market society, anyone in a would sign a contract like that in the first place, or that the common law would recognize its validity. And why is it exactly that Halliburton gets to muscle around like this in the first place? Oh yes, because of its connections with The State. So, yes, what happened to this woman is a grave injustice, but no, it doesn’t constitute a theoretical problem for libertarianism.
S. Dagnal Rowe -
12/21/2007
Correction: the second part of the first sentence above should read, "then one MAY bind oneself..."
S. Dagnal Rowe -
12/21/2007
The essential problem here is one of alienability: In my view, if title to a particular resource can be freely alienated (tangible property, rights conferred by contract, etc.), then one my bind oneself at one point in time to have any and all future disputes as to that same resource adjudicated by a contractually-designated arbritation agency. On the other hand, given the non-alienability of the will and the unenforceability of slavery contracts, a contractual provision that any future disputes arising out of violence directed against one's own person may only be adjudicated by arbitration would be absolutely void and unenforceable.
Gus diZerega -
12/20/2007
This is the standard libertarian argument, one utterly out of touch with the lived realities of most people every day. Had you read about what actually happened to her, it involved much more than a simple case of an employee or two breaking the law. And it involved a company guard keeping her captive, among a lot else.
KBR took medical evidence and "lost" it, making any lawsuit such as you suggest impossible. And we are talking very serious felonies here, not simple harassment. So employees in order to get a job can give up their rights to everything by your logic.
To me, libertarianism from this perspective seems to me nothing more than a fig leaf for oligarchy.
Jule R. Herbert -
12/20/2007
I didn't think Miss Curtis would be working in Baghdad.
Given the contemporay ("deep pocket" jurisprudence) abuses associated with using the doctrine of respondeat superior to hold employers financially responsible for the unauthorized, wrongful acts of their employees -- and clearly outside of the scope of their employment or agency, I see nothing wrong with making it a condition of employment that each employee enter into an arbitration agreement.
By the way, Jones is free to sue the actual persons who alledgedly harmed her -- she had no prior arbitration agreement with them.
