Older blog entries for SeaDragons (starting at number 0)

Frustrating not to be able to reply to articles. "Whatever" posted about a "lawyer-free" zone, and wondered about how to prevent lawsuits over things done in that space. "Whatever" apeared to want to bind everyone in the space to a covenant not to sue, but to be enforceable such agreements require formalities which no-one is likely to wish to ensure occur, if they are trying to permit membership in the "lawyer-free zone." What "Whatever" wants is perhaps an arbitration clause in the membership agreement, which appoints (for example) a panel of members to arbitrate disputes. Good language for arbitration clauses depends on what one hopes to do with them. A federal law declaring arbitration agreements enforceable under the conditions that contracts generally are enforceable would help Whatever's cause if it were dragged into court: whatever could refuse to defend on the merits of the complaint, and require remand to arbitration. The arbitors can be given authority to do quite a bit, including sanctioning persons who improperly take arbitration matters to court for harrassment purposes. I assume from Whatever's post that he doesn't want a zone of lawlessness, but of common courtesy and reasonableness within the framework of the values of the member community. A panel of members should be able to do this admirably. Of course, the presence of legal counsel to be sure the panel doesn't botch it in ways that would make the arbitor's decision unenforceable is a good idea. I think a short agreement which references membership materials but contains mostly just the terms of the arbitration agreement would be best for this sort of thing: people don't read click-wrap agreements, so it's got to be short and clear so people get it. It's got to be conspicuous, obvious ... and not hidden with unintelligible mumbo-jumbo.

A self-policing community could be achieved in this way, though the possibility exists that a litigious person could try to take a complaint to court. The positive side is that they're going to have to pay their attorney up-front, because an attorney looking at an apparently valid arbitration clause will not risk his own money walking into court when mandatory arbitration has been ignored .... And attorneys' fees are an effective bar to litigation for most complaintants. It's only certain types of well-heeled people that remain a problem.

An access problem exists, though: if the community's recources are available on the internet, people will be tempted to link to them in ways that ignore the sign-in sheet; so every page will have to look for a "I accepted the arbitration clause" cookie, and give non-cookie users the agreement first. Also, people tend to copy and paste text -- sometimes with attribution -- into emails, online bulletin boards, etc. People who do this will expose content which members think is not going to the courts to the world at large, which is not party to the membership agreement. One needs to think about what to do with reposts, and whether arbitration panels need some guidelines, such as a Membership Credo, to inform their judgment as to what to make of complaints.

Lawyer-free zone is "interesting" in concept, but what does one want to do that one is afraid of being sanctioned for in court? Or is not the sanction, but the fear of the expense of court? A more complete idea of what you want out of the "lawyer-free zone" is needed before it can be designed. Keep thinking on it.

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