RangerDave wrote:
Screeling wrote:
People should make a big deal of this, but I really hope the government stays out of it. That guy's future lawyer and the free market will dispense plenty of justice.
Well, the problem here is that the free market is already unable to operate because the airline industry has huge barriers to entry, is exempt from anti-trust rules, and has quasi-police powers over passengers, all of which has resulted in an oligopoly and a massive imbalance of bargaining power between the airlines and the passengers. Most of that is unavoidable given the nature of air transportation, though, so what the government should do is craft the rules to at least correct the imbalance to some degree so market forces can actually operate more normally. On this issue, for example, one way to do that would be to establish - by regulation or judicial decision - that contract clauses giving the airline the right to bump passengers at will are
per se unenforceable. The effect of that rule would be to actually
increase the ability of market forces to operate again because airlines that overbook would have to bargain with passengers they want to bump and keep increasing the offering price until some passenger accepts and trades back their seat.
Really, this is part of a much bigger problem with modern contract law. Most of the principles underlying contract law were developed in an age when agreements really were negotiated on a semi-personal level, but that just isn't the case anymore. Most contracts people agree to these days are prepared by the side with all the bargaining power and then "offered" to the other party on a take-it-or-leave-it basis and then "accepted" by a click-through link or even an implied acceptance-by-use. There's no actual agreement being negotiated, so the terms are massively one-sided, and it's really just an outdated legal fiction to pretend otherwise. The law does recognize this to some degree by theoretically disfavoring these so-called "contracts of adhesion", but in practice that doesn't mean much. I think the answer is for the law to start putting some teeth into that theoretical disfavor by actually applying the doctrine of "unconscionability" much more frequently and aggressively when it's a contract of adhesion like this. That will at least put some pressure on the companies using these contracts to draft reasonable terms rather than giving themselves the right to utterly screw their customers if and when they feel like it.
As I understand it, the United Airlines terms of service state that they can deny boarding due to overbooking.
The problem, as I see it, is that this guy had already been boarded, so United violated its contract with him - he was occupying a seat already. Someone who was not yet on the plane, or not yet seated (and obviously someone of that sort existed, since they were overbooked) should have been chosen, not some random guy picked by the computer.
Also, I'm given to understand that part of the reason he was removed was that United was obligated by its union contract to get its employees into those seats - he was booted to make room for a United employee. If so, that's another problem - Unions are being allowed to impose themselves on the customer in an impermissible way.
I think your larger point about "contracts" where there is no opportunity to actually negotiate is good, but that's not unique to airlines. If the changes you suggest were to take place, the legal profession in general would have a lot of adjusting to do, but that might not be such a bad thing.
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