1. Honestly, I can't think of any downside, not in consumer contracts (as opposed to b2b) anyway. I guess there are some cases where particularly favorable courts might be preferable from the corporation's point of view (there's a court in Texas that gets tons of patent suits for that reason, also there are some states that are good for corporations --- Virginia has no class actions, for example). That's about it.
2. I personally haven't. (Though, a long long time ago, I did kick enough of a stink about an arbitration clause in a car loan contract that the dealership put some money on the table to make me stop.) The thing is, most of the time, for most consumers, it doesn't really matter--the probability that I'm likely to get harmed by some transaction enough to want to be part of a class action is so small, that it's probably rational for me on a day to day basis to just accept them. It's collectively that they're a problem, because they seriously damage one of the main ways that the legal system has to hold corporate misconduct accountable. So we really need a collective solution, rather than just individual avoidance. (Obviously, the exception being in cases like this Equifax thing were we know that litigation is on the immediate horizon.)
I've actually thought for a while about some solutions that people in the tech world might be able to work on. One idea that I just finished sketching out for print (will be in the University of Toronto Law Journal sooner or later) would be to build a kind of coordinated contract negotiation platform, where people could commit to saying "hey evilCorp, if a million other people also agree to this, we'll all collectively cancel our accounts unless you get rid of evil terms X, Y, and Z." This would resolve some of the collective action problems with it being individually rational to accept these terms usually but collectively disastrous. If, that is, people would use it...
1. Honestly, I can't think of any downside, not in consumer contracts (as opposed to b2b) anyway. I guess there are some cases where particularly favorable courts might be preferable from the corporation's point of view (there's a court in Texas that gets tons of patent suits for that reason, also there are some states that are good for corporations --- Virginia has no class actions, for example). That's about it.
2. I personally haven't. (Though, a long long time ago, I did kick enough of a stink about an arbitration clause in a car loan contract that the dealership put some money on the table to make me stop.) The thing is, most of the time, for most consumers, it doesn't really matter--the probability that I'm likely to get harmed by some transaction enough to want to be part of a class action is so small, that it's probably rational for me on a day to day basis to just accept them. It's collectively that they're a problem, because they seriously damage one of the main ways that the legal system has to hold corporate misconduct accountable. So we really need a collective solution, rather than just individual avoidance. (Obviously, the exception being in cases like this Equifax thing were we know that litigation is on the immediate horizon.)
I've actually thought for a while about some solutions that people in the tech world might be able to work on. One idea that I just finished sketching out for print (will be in the University of Toronto Law Journal sooner or later) would be to build a kind of coordinated contract negotiation platform, where people could commit to saying "hey evilCorp, if a million other people also agree to this, we'll all collectively cancel our accounts unless you get rid of evil terms X, Y, and Z." This would resolve some of the collective action problems with it being individually rational to accept these terms usually but collectively disastrous. If, that is, people would use it...