YouSaid · the spoken record

Zephyr Teachout

lines on the record: 59
first: 2026-05-14
most recent: 2026-05-14
sittings or episodes: 1
sources: podcast

Every line below is reproduced as it was said and linked to the record it came from. Nothing here is summarised or generated. Directory · Search · Corrections

“Not going to escape it by reading your contracts more carefully because most of them aren't negotiable and Verizon's not going to let you negotiate them. So we're not going to ethically consume our way out of this problem. This is, to your earlier point, something we are going to solve collectively. Ultimately, that's going to happen in city councils and state legislatures. I worked with a young, very smart University of Chicago law student to draft some model legislation. I have a personal website, BrennanBalu.com, where you can download it, send it to your legislator and get them starting to pass some laws. So I think that is the practical way that we're going to make progress here.”
2026-05-14 · Decoder with Nilay Patel · How companies weaponize the terms of service against you · IDENTIFIED FROM THE TRANSCRIPT
“So I am fortunate in that I get to talk to a lot of people who have done one specific thing, which is they have chosen a issue that they care about and then they stick with it for several years. And over and over again, this happens to me about every six to nine months, I'm astounded by the amount of change that one person has had on a specific issue just because they stuck with it for one year or three years or 20 years or whatever it happens to be. You know, I watched a handful of people completely change the prison phone industry. I watched a handful of people like make mobile housing in their communities dramatically more fair. And so, you know, it kind of goes back to what we were talking about earlier in our discussion. Whereas I think when your viewers and when your listeners and when your readers sort of see things in the macro, I completely understand how despairing it is. But I will say I remain incredibly hopeful about the power of”
2026-05-14 · Decoder with Nilay Patel · How companies weaponize the terms of service against you · IDENTIFIED FROM THE TRANSCRIPT
“No, that's a really deep sentiment. And I both understand it and don't agree with it because I taught a class at Stanford last year on January 6th and talking to young students about like the current political moment. And it was very unsettling both how deeply young students were thinking about so many of these issues and at the same time how scared they were to act on them, not just because the problem seemed so large that it was paralyzing, but because they were literally worried about getting doxed or losing their job outside of college or law school or whatever it happened to be if they said the wrong thing. And so I completely understand sort of the people's sense of sort of overwhelming despair and nihilism. I will say, you know, I am not particularly despairing. I'm not particularly nihilistic, in large part because of the work that I do.”
2026-05-14 · Decoder with Nilay Patel · How companies weaponize the terms of service against you · IDENTIFIED FROM THE TRANSCRIPT
“Just an overwhelming kind of nihilism from our audience, particularly our young audience. And I relate it very much to a feeling of powerlessness. And I relate that feeling of powerlessness directly to arbitrary outcomes. We started by talking about corruption. And what is corruption except you're rich, so you don't have the justice system won't touch you. Or you can spend enough money to make the DOJ go away. And maybe forced putting it all in forced arbitration is too much. Maybe you can't bear all the weight. But there's some part of it where it's like, where do you begin? How do you escape the sense that everything is arbitrary and actually the system should be more fair? And maybe the system should be more elegant, but maybe we actually just have to do a bunch of hacks to make it more fair.”
2026-05-14 · Decoder with Nilay Patel · How companies weaponize the terms of service against you · IDENTIFIED FROM THE TRANSCRIPT
“I mean, now we're deep into my own feelings. So just I apologize. But please go with me for one second. I have always thought that what the Verge sells to people is a sense of hope. Like we cover people who make things and we cover companies who build really remarkable things. And then people use those things to build new things. It's just the cycle of what a tech magazine is, like fundamentally. We're like, here's some new stuff. Do you like it? And then people say, now I can make a different kind of music than ever existed before. And that is very fun. And lately, I've sensed.”
2026-05-14 · Decoder with Nilay Patel · How companies weaponize the terms of service against you · IDENTIFIED FROM THE TRANSCRIPT
“We constrain forced arbitration, it is going to be very hard for anybody to challenge those. I do think, in a sense, you know, the sort of arbitrariness that we're all experiencing, I really like the way that you've put it, can in some ways be chalked up forced arbitration. I don't want to sort of overpromise this one sort of thing, but maybe it's part of a larger story in that as so much of our societal disputes sort of get channeled outside of the public justice system and we don't have the development of the body of law and we don't have sort of public discussion of these issues. Yeah, I do think we grow sort of increasingly balkanized and isolated. And, you know, sort of at a certain level, sort of definitionally what we are as a society begins to fray.”
2026-05-14 · Decoder with Nilay Patel · How companies weaponize the terms of service against you · IDENTIFIED FROM THE TRANSCRIPT
“That's a really profound question. And I've never really thought about it, though. Thank you for asking that. I certainly think at a practical level, forced arbitration, ending forced arbitration or constraining forced arbitration can help solve that. You know, when you talk about the problems, the dynamic pricing or the sort of personalization that an Uber CEO is promising, maybe even with the best of intentions, is likely going to violate a whole bunch of laws. So you can imagine a world in which otherwise well-intentioned dynamic pricing dramatically discriminates against people based on their race or dynamic hiring practices ends up discriminating in making job offers and so forth, dramatically discriminates against people based on their gender. So I think that this sort of attempt at personalization intentionally or not is probably going to violate a whole bunch of laws.”
2026-05-14 · Decoder with Nilay Patel · How companies weaponize the terms of service against you · IDENTIFIED FROM THE TRANSCRIPT
“That you can be treated differently in almost every case, in every interaction in some way. Do you think just changing arbitration is like the first step towards being like, actually, we need to treat people more fairly. We need to equalize the outcomes instead of at every casing, oh, like you have a credit card that's tied to this airline. We can see you're spending. Your price is going to be up for this route, which is just, we're barreling towards that every single day.”
2026-05-14 · Decoder with Nilay Patel · How companies weaponize the terms of service against you · IDENTIFIED FROM THE TRANSCRIPT
“When I think about that, there's so much about AI and LMs in the ether that is related to dynamic outcomes, right? You're going to talk to the system and the system will understand you and something will happen for you that maybe isn't happening for someone else. Uber CO was just on the show and they're redoing all of their actual customer support to deliver dynamic outcomes. And instead of having written policies, they're basically just going to tell the AI. Like, here are the vibes we want customers to feel. And I asked them, like, you're going to back into having policies because you still want the perception of being fair. And right next to that is all these companies instituting dynamic pricing, which is fundamentally unfair. And right next to that is they're all signing you up for forced arbitration agreements where the outcomes can be totally arbitrary and you will never know if your case was resolved next to the next case. And when you say justice is about like the same set of facts having the same outcomes, it feels like that's rippling through the entire experience of being an American right now.”
2026-05-14 · Decoder with Nilay Patel · How companies weaponize the terms of service against you · IDENTIFIED FROM THE TRANSCRIPT
“Legitimacy of large language model that's essentially a black box. How can people possibly believe that it was ultimately fair? I'll also say just at a more practical technical level, one of the challenges we alluded to this earlier that you have with forced arbitration is that decisions often aren't written down or if they are written down, they're not made public. And the reason why that's so important in a functioning legal system, it's actually kind of sort of the key to a legal system is that similar cases get treated similarly. You know, that's what justice is. And when decisions aren't made public, it's actually literally impossible to come up to actually create a case law upon which people can make decisions. And so the way that arbitration is currently structured, even if in every other respect it was fair, if you have an AI that has no corpus of”
2026-05-14 · Decoder with Nilay Patel · How companies weaponize the terms of service against you · IDENTIFIED FROM THE TRANSCRIPT
“Speaking personally, it's horrifying. I think there are, you know, I don't want to be a luddite about these things. And, you know, I use, I think AI can be very useful for certain parts of legal work, document review, and so forth. I think that there are two problems here. One, very high level, isolation, lawyers are one paid to understand the individual nuances of each case rather than sort of the generalities. And I have often found that sort of AI bots have been very ineffective at actually writing sophisticated legal briefs that are specific to a case because they can write sort of the generic section about what the legal standard is and so forth. But actually understanding the nuances of the case, it's more than just a matter of natural language processing. But even if they were perfect at it, I think justice systems to work, people need to be bought into its legitimacy. And I think it's very hard to buy.”
2026-05-14 · Decoder with Nilay Patel · How companies weaponize the terms of service against you · IDENTIFIED FROM THE TRANSCRIPT
“That does feel like the next turn, right? You open your Verizon app and you're like, I didn't get service today. I'm arbitrating my bill for the month and some combination of arbitration and customer support merges into a chatbot and delivers you an outcome. That seems very bad. It also seems like where all of these companies want to go. What does that look like to you?”
2026-05-14 · Decoder with Nilay Patel · How companies weaponize the terms of service against you · IDENTIFIED FROM THE TRANSCRIPT
“It's funny, you brought up the AAA. We just had Bridget McCormack. She was the Chief Justice of the Michigan Supreme Court. She's now the CEO of the American Arbitration Association. We talked about this kind of at length, right? Her proposal was we should just have AI do it. There's some set of arbitration between construction firms. This is where they're starting. It's documents-only construction cases. And she was like, you don't need an arbitrator. Like these are actually both sophisticated parties. They both show up in front of us all the time. All the cases can be resolved and the nature of the contracts and whatever delivery invoice was late or on time or whatever. And the AI can just do it. And that is perceived as more fair. And they can just move on with their lives. There's something to that, right? If you perceive the entire justice system to already be so unfair, at least ChatGP is going to listen to you. You can just talk to it until it gives in and says, I've issued a ruling and there's some data saying that people will perceive that to be more fair because they were at least listened to.”
2026-05-14 · Decoder with Nilay Patel · How companies weaponize the terms of service against you · IDENTIFIED FROM THE TRANSCRIPT
“The beginning of mass arbitration, it was easy because the companies just hadn't considered the possibility. And so we're completely caught off guard and had committed to paying millions of dollars to consumers that if they had been strategic would not have done. The challenge that you've got is that there are what are called arbitration companies, so AAA and JAMS are the two largest ones that actually provide the arbitrators for these companies. They are businesses and are in the business of providing arbitration. And so the rules of the game that they set, they are naturally inclined, whether they would admit it or not, you know, they have a natural incentive to make the rules favorable to the companies that are actually paying for arbitration and that the repeat players and these sorts of things. So there is a natural incentive for these guys to make arbitration ever less fair for consumers and employees, which I think, you know, to your point about”
2026-05-14 · Decoder with Nilay Patel · How companies weaponize the terms of service against you · IDENTIFIED FROM THE TRANSCRIPT
“Mass arbitration, the idea that you can cost these companies an enormous sum of money just by making them enforce your own agreements, they are pushing back against it. There's some instances where, I don't know, Valve, the video game company, took their arbitration costs out of its agreement because of mass arbitration. And then there's Bank of America, which changed its user agreement, but forces individual arbitration, and that's going to go into effect, I think the week after we're talking, it's coming. Is that going to be effective? Is it going to push back on the idea that you can hack the system this way?”
2026-05-14 · Decoder with Nilay Patel · How companies weaponize the terms of service against you · IDENTIFIED FROM THE TRANSCRIPT
“You know, it does seem like he's sort of rebuilding the sort of Korean conglomerates that you see going on where you have a single family running 18 different kinds of businesses, often supporting each other financially or the Japanese, what is it, Koretsu sort of banking conglomerates that you had those Koretsu collapsed in the 1990s and Japan's had a multi-decade recession as a result. So I'm not sure Elon Musk is necessarily going to do better than that. But speaking personally, I am enormously skeptical of Elon Musk's financial acumen.”
2026-05-14 · Decoder with Nilay Patel · How companies weaponize the terms of service against you · IDENTIFIED FROM THE TRANSCRIPT
“When you're doing these cases It does seem like Elon, you know, he just doesn't want to pay the money and now he's like rolling up all his companies. He might, you know, IPO SpaceX in some way. Somehow Twitter is now part of SpaceX. That's all very confusing. Did that all just wrap up because he needed it to go away?”
2026-05-14 · Decoder with Nilay Patel · How companies weaponize the terms of service against you · IDENTIFIED FROM THE TRANSCRIPT
“It was fascinating. And there are certain limitations of what I can talk about. And, you know, again, Shannon and her team were the real heroes on this, but it was fascinating because Elon Musk summarily fired 2,000 employees and did clearly promise severance that he refused to pay. And these employees had unfortunately signed arbitration agreements, which prohibit, by and large, prohibited them from being class actions. And so Shannon, the team, I was part of it decided to say, okay, we're actually going to represent these hundreds of thousands of employees in individually arbitrate. Can't get into the details, but I think that we had enormous success. And I hope Elon Musk doesn't make the same mistake twice.”
2026-05-14 · Decoder with Nilay Patel · How companies weaponize the terms of service against you · IDENTIFIED FROM THE TRANSCRIPT
“Was you know you're talking about hacks? This was a fascinating one. So arbitration, like you said, is meant to kill class actions so that each person has to bring a case individually. It's too expensive for each person to do it so nobody ever does it. One thing that the companies who are doing this just messed up on is in order to make these agreements seem facially a little more fair, they said, we're going to pay for the initial cost of the arbitration. We'll even pay for the arbitrator. You just have to start the arbitration. And some very smart lawyers said, okay, we're going to take you up on your offer and we are going to initiate thousands of arbitrations all at once. And you have to pay for all of them all at once. It's clear that the companies just never even considered the possibility that a lot of people would arbitrate their cases because as soon as they did, they tried to back out of their own agreements and said, we actually don't think we should pay these tens of millions of dollars that we promised to pay.”
2026-05-14 · Decoder with Nilay Patel · How companies weaponize the terms of service against you · IDENTIFIED FROM THE TRANSCRIPT
“Back. I'm talking Brendan Ballou about forced arbitration. We've been discussing how as a system it's fundamentally unfair for consumers, which is to say, basically everyone, and that raises an obvious question. What can we do about it? Reason I talked about hacks and magic words is, yeah, we can try to go through the front door and fix it with state laws that tweak arbitration and then your proposals, like we should just break the system. We should just do mass arbitration and cost these companies a lot of money and make that entire operation just untenable. Explain what you mean by breaking arbitration.”
2026-05-14 · Decoder with Nilay Patel · How companies weaponize the terms of service against you · IDENTIFIED FROM THE TRANSCRIPT
“It sort of makes it impossible to fix it. It's like if you're depressed and you're looking at your apartment, it's in a mess, you're like, I can't do anything about it. Whereas if you think like, okay, I'm going to focus on the kitchen right now and start doing that. It becomes a much more solvable problem, which is, you know, sort of why I chose to focus on this seemingly fairly technical issue of forced arbitration, because I thought if I get people to focus on this thing specifically, I thought it would help them understand both sort of how things get broken, but also like, here's how we can fix this one specific thing. And I think that actually can be kind of empowering for people.”
2026-05-14 · Decoder with Nilay Patel · How companies weaponize the terms of service against you · IDENTIFIED FROM THE TRANSCRIPT
“But, you know, and maybe I'm taking this in an odd direction, but I think you're exactly right, and in a lot of ways our government's made that literally harder to do. Like back in the 90s, Montana passed a law to try to make it, if you had an arbitration agreement in your contract, contractually you had to put it on the first page. You had to notify people that you had an arbitration agreement. That very straightforward law got stuck down by the Supreme Court and said that was actually discriminating ironically against arbitration agreements. So, you know, there's a lot of impediments to those sorts of things. And I think you're exactly right that sort of at a high level, I think these are the responsibilities, as you say, of democracy to resolve a lot of these issues. I will say sometimes I think talking sort of at a high level of generality can be paralyzing in its own way. Because, you know, when you talk about sort of how everything in its own way is broken,”
2026-05-14 · Decoder with Nilay Patel · How companies weaponize the terms of service against you · IDENTIFIED FROM THE TRANSCRIPT
“That's just I'm a tech person. I'm like, this computer makes no sense. Like, you should make a different, better computer. You know, I think terms of service agreement should be illegal. Fundamentally, I think they are unconscionable contracts. I think you can point to forcing people into arbitration is one element of them being unconscionable. You can point to just the fact that no one can negotiate them. And the bald truth that literally no one reads them is a problem. Like, I think it is bad that a huge amount of the American economy is predicated on no one reading the contract at scale. You should probably fix that problem in some way. And if you take a step back and you, at least for me, it's like, how would you fix that problem? Well, the state which represents all of us should negotiate the contract. It should write a privacy law.”
2026-05-14 · Decoder with Nilay Patel · How companies weaponize the terms of service against you · IDENTIFIED FROM THE TRANSCRIPT
“Than what we had 60 years ago when we had effectively had an apartheid state in the United States or 100 years ago during the Gilded Age, when we were interpreting our antitrust laws to break up unions but not corporations and so forth. So maybe I'm just too captured by my own profession, but I sort of see it as a cost of doing business and any sort of human society where we're all flawed.”
2026-05-14 · Decoder with Nilay Patel · How companies weaponize the terms of service against you · IDENTIFIED FROM THE TRANSCRIPT
“Well, you keep employing lawyers, and that's something that we do. Yeah. So, no, I think you're exactly right that we have a lot of sort of odd hacks to deal with some sort of structural injustices in our legal system that are hard to solve. You know, so much of the workarounds that we've been having about, you know, trying to come up with new regulations at the federal level is because it's become so increasingly hard to pass legislation in Congress. The reason why we're having to do so many things at the state level right now is because the Supreme Court has been so adverse to progressive change at the federal level and so forth. So I definitely think that we have to have these sort of awkward workarounds. I will say though that, you know, awkward workarounds have been a fact of human existence. And as profoundly unfair in many ways as our legal system is and probably more unfair than it was a few decades ago, it is vastly better.”
2026-05-14 · Decoder with Nilay Patel · How companies weaponize the terms of service against you · IDENTIFIED FROM THE TRANSCRIPT
“Can I just ask why that? I mean, obviously, you were a federal prosecutor in a previous life. There's a part of me that says our approach to the American legal system right now generally is like a series of hacks and magic words. Like we can't just go and do the policy issue. We have to be like, I deputize you to be a state attorney general. So escape the contract that you signed. And now the state will get a cut of your private litigation. And we've just created a whole other set of weird policy problems instead of just solving the policy problem. Why does that keep happening?”
2026-05-14 · Decoder with Nilay Patel · How companies weaponize the terms of service against you · IDENTIFIED FROM THE TRANSCRIPT
“The state, which can enforce all these same laws in the state labor department, and you're representing us in a lawsuit against the company. And if you win, the state will get a cut and you'll get the rest. But what's so clever about that is while you're bound by an arbitration agreement, the state is not. And so it's effectively a way to circumvent arbitration agreements. Now, that's great for employment law, and I think it has made California employees much better treated than a lot of other states. We need to expand that sort of legislation to all sorts of laws, to consumer protection laws, securities, and anti-fraud laws, antitrust and so forth. If we can do that, then we can narrow down arbitration to become a much smaller part of our lives and companies are going to treat us better.”
2026-05-14 · Decoder with Nilay Patel · How companies weaponize the terms of service against you · IDENTIFIED FROM THE TRANSCRIPT
“Yeah, California's made a lot of progress on this. One of the biggest changes that they've made is not just making arbitration fairer, but actually finding ways to get people out of arbitration in the first place. And there's this law called the private attorney's general act, PAGA. And it's really smart. So what it says is if you're an employee that's been harmed by your company, you didn't get the wages you were deserved, you were discriminated against, or whatever it happens to be, and you sign an arbitration agreement, normally that's too bad. You can't sue your company. But we're going to say to you employee.”
2026-05-14 · Decoder with Nilay Patel · How companies weaponize the terms of service against you · IDENTIFIED FROM THE TRANSCRIPT
“Allow or require decisions to actually be written down and shared. We can also require arbitration companies to actually share the statistics on how arbitrators rule. One of the advantages that companies have is you and I are probably going to arbitrate one case in our life. A company might arbitrate dozens or hundreds or thousands. And so they know which arbitrators to pick and we don't. But by requiring actual disclosure on how arbitrators rule on things, you actually have a better chance of picking one that's going to be fair to you. So all those may sound like incremental changes, but I will say the more that arbitration can become like a regular court, both arbitration itself will become fair and companies will become less attracted to it because they're specifically attracted to it right now because it's not like court.”
2026-05-14 · Decoder with Nilay Patel · How companies weaponize the terms of service against you · IDENTIFIED FROM THE TRANSCRIPT
“One of the reasons that I think corporations are so attracted to forced arbitration is it's unlike a regular court. So in regular court happens out in open so people know that it's not corrupt. Decisions are written down so that people who have similar cases can reference those and be treated similarly. And if the judge makes a mistake, that decision can get appealed. None of those things are necessarily true in arbitration, which generally occurs in secret. Oftentimes decisions are written down. In fact, sometimes companies contract that they specifically aren't. And ironically, it's actually much harder to appeal an arbitrator's decision than it is to appeal real judge's decision. So there are ways that we can make arbitration more fair by requiring certain disclosures, by allowing procedural fairness, you know, so that plaintiffs can actually get what we, you know, your lawyer, what we call discovery from the other side.”
2026-05-14 · Decoder with Nilay Patel · How companies weaponize the terms of service against you · IDENTIFIED FROM THE TRANSCRIPT
“This is the last third of your book. How do you fix it? And you lay out a few ways of fixing it and getting people away from the coercion of forced arbitration agreements. The first thing you can do is you could just fix arbitration itself. What would that look like?”
2026-05-14 · Decoder with Nilay Patel · How companies weaponize the terms of service against you · IDENTIFIED FROM THE TRANSCRIPT
“Interests. And so, you know, the folks that are most successful and most liked by the justices by and large are the ones telling them a sort of pro-corporate story. So I don't think that there's really going to be a change at the Supreme Court level, but I do believe that there is going to be change nationally for exactly the reasons that you're talking about. I think that there's widespread dissatisfaction with corporate power right now. I think it is the very rare person that feels that corporations have too little power in America. So I think that there's going to be a lot of change, but I think changes by and large going to happen at the state and local level rather than at least in the Supreme Court or in Congress.”
2026-05-14 · Decoder with Nilay Patel · How companies weaponize the terms of service against you · IDENTIFIED FROM THE TRANSCRIPT
“A multi-million dollar operation. So, you know, a single donor gave $17 million to help get Justice Kavanaugh appointed to the court similar numbers for Justice Gorsuch and so forth. And so if you have that kind of money that's necessary to put somebody on the court, chances are the person that's going to get put on the court is pretty sympathetic to the people with that kind of money. I also think that there's something about the nature of Supreme Court litigation itself that has changed, which is the Supreme Court has become much more insular over the past several decades. So back in the day, the people that were arguing cases in the Supreme Court were by and large the people that started the cases in the district court, in whatever state they happened to be in. Now, I think it's 20 lawyers and clinics now are responsible for arguing something like 50% of all cases before the Supreme Court and by and large those lawyers represent large corporate”
2026-05-14 · Decoder with Nilay Patel · How companies weaponize the terms of service against you · IDENTIFIED FROM THE TRANSCRIPT
“I don't think it's going to change at the Supreme Court, not with a change in personnel. I'm referencing some studies that are a little old now, but if you look at actually how the Supreme Court has ruled for corporations, I believe that this is the most pro-corporate Supreme Court, at least since the 19th century. So I think the Supreme Court rules for the Chamber of Commerce somewhere in the order of 80, 80% of the time or higher. This was before Justice Jackson joined the court. But as I recall, Justice Sotomayor was previously the most anti-corporate justice on the court and even her decisions were 50% for the Chamber of Commerce. So we live in an era where the Supreme Court in particular is just enormously differential to corporations. I think that's probably for at least two reasons. One is, you know, getting appointed to the Supreme Court has now become”
2026-05-14 · Decoder with Nilay Patel · How companies weaponize the terms of service against you · IDENTIFIED FROM THE TRANSCRIPT
“Read these contracts is like the foundation of the American economy. It feels like we should maybe look at that more thoroughly. No one can negotiate them. And they change all the time. And all of that, you know, I'm just thinking back to my law school education. Like, oh, those are just unconscionable contracts. Those are contracts of adhesion. to literally use my phone i've entered into some agreement with apple that no one can negotiate that seems ridiculous to me and to participate in society i must use my phone so now there's a secondary legal system that is mediating my relationship to the country and the world and literally no one can look at it do you think that that is going to change because it doesn't seem that tenable to me”
2026-05-14 · Decoder with Nilay Patel · How companies weaponize the terms of service against you · IDENTIFIED FROM THE TRANSCRIPT
“Scalia was writing before pervasive terms of service agreements, right? He was writing before pervasive arbitration. He was writing before a pretty unhappy American public staring at tech companies saying, no, we can just take whatever we want to make AI. Like something has shifted in the public, in the perception of big tech, whatever you want to say. It's an angrier country. It's a more unhappy country. The people feel more exploited. Scalia would have had to open up his Mac and click 10,000 terms of service agreements. And it just feels like something has changed. Any justice today, and maybe they're all still in bubbles in the ivory tower and they don't experience regular people experience, but everyone else feels it. And to just participate in society, you're agreeing to 10,000 contracts every day that you definitely don't read. The legal fiction that anyone has actually”
2026-05-14 · Decoder with Nilay Patel · How companies weaponize the terms of service against you · IDENTIFIED FROM THE TRANSCRIPT
“Know, I don't want a psychologize too much, but I think if you look at his His judicial work, with the exception of some limited stuff in criminal justice, I think he was always an advocate for the powerful in pretty much any sort of dispute. He was absolutely an advocate for expansive presidential power, expansive corporate power, and so forth. And so oftentimes, you know, he's lauded as this textualist, this idea that somebody whose ultimate fidelity is to the text of the law, to the Constitution. And in some cases he was. But when textualism or originalism ran up against, by and large, ruling for corporate interests,”
2026-05-14 · Decoder with Nilay Patel · How companies weaponize the terms of service against you · IDENTIFIED FROM THE TRANSCRIPT
“Unconscionable, a contract like that may seem so unfair and lopsided to employees and to consumers. Federal courts would still enforce those agreements. And there was nothing that a court could do to say, you know, this is so unfair. We're not going to allow this. And that was really because of Scalia.”
2026-05-14 · Decoder with Nilay Patel · How companies weaponize the terms of service against you · IDENTIFIED FROM THE TRANSCRIPT
“This system by requiring people into arbitration and to arbitrate their cases individually. So each person has to bring an individual case. And you can immediately imagine for anything other than the most expensive harms, that makes pursuing a case completely unaffordable. So you think about all those little fees that a bank might have on your bank statement or your cell phone company has, and you're like, why am I getting charged $30 a month for this? This seems like BS. It may well be, but there is no effective way for you to resolve that because you're forced into individual arbitration. You can't join a class action over that $30 fee. All that is because of an honest scalia. So he issued an incredibly important decision in 2011 called Concepcion that said that however, and this is a legal term, however quote unquote.”
2026-05-14 · Decoder with Nilay Patel · How companies weaponize the terms of service against you · IDENTIFIED FROM THE TRANSCRIPT
“Opinions are funny. Exactly, you know, so it's like I want to both acknowledge that and then also say that the decisions that he had around forced arbitration have had profoundly damaging effects for most consumers and employees. So one of the key purposes of forced arbitration is to kill class actions. So class action is when everybody's hurt in the same kind of way, you can bring one lawsuit instead of hundreds or thousands or millions of lawsuits. Much, if not most of our social progress on the courts has come through class action. So Roe v. Wade was a class action, Brown v. Board of Education was a class action. And then in the consumer and employee context, you know, you have cases, for instance, of women who are dying of cancer because of defective birth control. Those are cases broadest class actions or people whose family members all die in a plane crash, broadest class actions. Forced arbitration kills”
2026-05-14 · Decoder with Nilay Patel · How companies weaponize the terms of service against you · IDENTIFIED FROM THE TRANSCRIPT
“Beginning with Warren Berger, but then Anton and Scalia, John Roberts, and so forth, took this little law from 1925 called the Federal Arbitration Act, which was meant to really allow sophisticated companies and merchants to bind themselves into arbitration so they didn't have to go through the headache of going to court and said, we're actually going to take this law, which is meant for sophisticated parties of roughly equal bargaining power. And we're going to extend it to employees and to consumers, and we're going to extend it to the kinds of contracts that you just mentioned, the sort of click to accept, take it or leave it contracts that we sign every day with companies. That was never the intention of the statute, and it really wasn't supported by the text of the statute either. But I think the conservative justices really saw this as a vehicle to keep certain people and certain kinds of cases out of court. And they were enormously successful in that endeavor.”
2026-05-14 · Decoder with Nilay Patel · How companies weaponize the terms of service against you · IDENTIFIED FROM THE TRANSCRIPT
“Yeah, and it's interesting because when you describe stories of forced arbitration, I think sometimes people often think that you're just making it up because it sounds so lopsided. You know, there are stories of people being compelled into arbitration and then can't escape even when their arbitrator is exhibiting signs of senility or falling asleep during their arbitration, and yet their decisions are still confirmed and actually cannot be appealed in court. So why would, you know, real judges sign off on a system like this? Well, by and large, they're taking their cue from the Supreme Court, which began in the 1980s really fell in love with forced arbitration. There was this idea that there was this explosion of litigation that was costing big companies millions or billions of dollars. And there needed to be some way to get consumers and employees out of court. And forced arbitration with the way to do that. So the Conservative Justice.”
2026-05-14 · Decoder with Nilay Patel · How companies weaponize the terms of service against you · IDENTIFIED FROM THE TRANSCRIPT
“There's an aspect of this where it's just so obviously unfair for the regular consumer or the regular employee. And the courts have consistently looked at that and said, yeah, that's fine, but you signed up. Like you signed up for Disney+, you entered into this contract. It occurred. You scroll to the bottom and you hit I accept and now your life has been signed away. Why does that keep happening? Because to me the idea that the formal justice system, the system where you go to open court, you make your case, and there's a jury. That thing should be very protective of its outcomes, right? That system should say, actually, we decide, and big corporations evading our authority is bad. And I don't know why they're not more protective of that authority.”
2026-05-14 · Decoder with Nilay Patel · How companies weaponize the terms of service against you · IDENTIFIED FROM THE TRANSCRIPT
“If they continued. And we actually give the next example that we gave was about a woman who worked on a cruise ship who was allegedly raped by a co-worker. She tried to sue the cruise ship for having this enormously unsafe work environment. She was compelled into arbitration and compelled to arbitrate in the Philippines, which was her home country. We obviously never knew the outcome of that arbitration because arbitration is almost always kept secret. So it's a system that really does bind us all.”
2026-05-14 · Decoder with Nilay Patel · How companies weaponize the terms of service against you · IDENTIFIED FROM THE TRANSCRIPT
“Jeffrey Piccolo and his wife went to Disney World. His wife was a doctor, had severe allergies, and so they were trying to be very careful about where they ate. According to his subsequent legal complaint, they went to this faux Irish pub. They were assured that the food was safe. In fact, was not. His wife died of anaphylactic shock. But when he tried to sue Disney for wrongful death, Disney tried to compel him into forced arbitration by saying that he had consented to it when he signed up for his Disney Plus account several years prior. And I think it's kind of extraordinary for folks to imagine that by signing up for a streaming service, you could essentially sign away your right to sue over your wife's death. But to be clear, the law was very much on Disney's side. And they would have won, I think, because of enormous public pressure, they eventually backed down. But they would have won.”
2026-05-14 · Decoder with Nilay Patel · How companies weaponize the terms of service against you · IDENTIFIED FROM THE TRANSCRIPT
“Is paid for typically or many times by the company that you're trying to sue. And as you can imagine, when a judge is paid for by one party, all the incentives are for them to rule for that party and the statistics bear that out. And so whereas consumers win 89% of the time in small claims court, they win 20 to 30 percent of the time in forced arbitration when they represent themselves without a lawyer. It might be less than 10% before one arbitration company, it was 0.2%. So a two and a thousand chance of winning. So it's a system of justice that is profoundly stacked towards big companies and it's one that we are all, whether we realize it or not, a part of.”
2026-05-14 · Decoder with Nilay Patel · How companies weaponize the terms of service against you · IDENTIFIED FROM THE TRANSCRIPT
“Context of forced arbitration, it would both anger people and get them mad about our current system, but also help them understand how this has happened and also how we might change things for the better. So that was the initial motivation. If I can just add on to that sort of what we're actually talking about here with forced arbitration, because I think it's a term that many people have heard, and it's certainly something that is affecting your life right now. But it's something that I think a lot of people don't actually know what it is. Just a set of baseline here. Forced arbitration is a private alternative to the justice system. So, you know, if you are harmed by a company, if you are cheated, if you are discriminated against, if a family member of yours is hurt or even killed, by and large, you have probably signed an agreement with that company saying that you cannot sue them for that harm in court. Instead, you have to go to a private justice system where the judge called an arbitrator.”
2026-05-14 · Decoder with Nilay Patel · How companies weaponize the terms of service against you · IDENTIFIED FROM THE TRANSCRIPT
“Exactly. Let's start with the why and then get into arbitration and then why it's bad. And then maybe we can get into the history here. I'm a practicing lawyer. We had got to talk a few years ago about my first book about private equity. As I was sort of doing follow-up work from that and just in my own practice, I got the sense that I think most people feel that the legal system is profoundly stacked against them and really organized to benefit the rich, you know, whether it's rich individuals or big corporations. And I wanted to explain to folks at a very practical level that I think they're, by and large, they are right. But to do it in a very specific instance so that people understood, you know, very directly how the legal system has changed over the past four decades or so to really benefit large companies in a literal sense, not a figurative sense, in a literal sense, put them beyond the reach of the law. And I figured that if I could explain that in the specific”
2026-05-14 · Decoder with Nilay Patel · How companies weaponize the terms of service against you · IDENTIFIED FROM THE TRANSCRIPT
“This feels like an excellent transition into the book. A lot of what's happened with arbitration is a reaction to the perceived explosion in litigation in the 70s and 80s. You talked about this very directly in your book. The idea that there's a bunch of dormant power that state attorneys generals should use or that private plaintiff should use has dormant for a reason. We just haven't seen it happen. And you're saying, hey, we should bring this back. And actually the rise of arbitration agreement stands in your way as a citizen of the United States to get the relief that you might deserve that the federal government or even the state governments might not be pursuing for you. How do you think about that dynamic and why did you end up starting with arbitration specifically?”
2026-05-14 · Decoder with Nilay Patel · How companies weaponize the terms of service against you · IDENTIFIED FROM THE TRANSCRIPT
“To enforce all federal antitrust laws and are doing so. You saw them get that big win in the Ticketmaster case a few weeks ago when the federal DOJ abandoned them. That was extraordinary. But they also, you know, they have all sorts of tools on consumer protection, anti-fraud, and so forth. And importantly, private plaintiffs have power here. And that's what the gap that we're trying to fill, which is there are so many people who have been harmed by this corruption. People, you know, we're talking about people that are buying their way out of the justice system. Many of those people owed millions of dollars in restitution to their victims. Those victims potentially have causes of action to sue in cases like that. And you can go after example after example after example. So I understand why people might be cynical or might be pessimistic in this moment, but there's actually an enormous amount of tools that we have at our disposal. We just need to use them.”
2026-05-14 · Decoder with Nilay Patel · How companies weaponize the terms of service against you · IDENTIFIED FROM THE TRANSCRIPT