1) You have a constitutional right to bring suit against a private company if the amount in dispute exceeds $20.

2) The clauses are meaningless as the problem is with the lack of provable assent.

1) Negative. You do not. What you have is a right to a jury trial in a civil case, where a federal court has jurisdiction , that would have been brought before the courts of law (rather than equity) in England in 1789. In the case of class actions, if you don't have a federal law that authorizes your claim, you actually need $5 million in controversy before you can get into federal court.

2. This is only partially true. Yes, there might be a problem with assent, but it doesn't render the clauses meaningless. As far as I'm aware, so-called "clickwrap" contracts, where you agree to a contract by clicking, suffice to manifest assent in every state. Companies haven't been as successful arguing that they can prove assent based on a tiny "terms of service" link on the bottom of their page that you don't have to click to agree to (sometimes called "browsewrap"), but click-through contracts are pretty much valid. Yes, they're contracts of adhesion with a seemingly unfair power imbalance, but between pro-business judges and the pro-business UCC, this argument doesn't get far.

1) Not sure where you're coming from. If a company has damaged me for more than $20, I have a constitutional right to jury trial against them.

2. It is meaningless in the context of "you violated our language as pursuant to § 12 paragraph 10 sentence 4 clause 2 subsection c item 15" because their language never even makes into the case due to lack of provable assent. Claiming "clickwrap", "browsewrap", "click-through" or any other jargon doesn't help. You will need to provide the full source of the code that was actually ran and show that the user actually read, understood, and assented to whatever language you claim. This is basically impossible on many fronts: a) most companies don't track events in enough detail b) you'll never be able to prove those events actually happened c) even if you can prove that someone actually checked a box and pushed a button, you still can't prove someone actually read language and agreed to it.

1) I'm assuming you're getting that $20 figure from the Seventh Amendment, and while your interpretation seems reasonable and natural, it's not how the Seventh Amendment has been interpreted. First, the Seventh Amendment has never been applied to the states, so it doesn't give you any rights in your state's court. If Massachusetts wanted to amend its state constitution to abolish juries in civil cases in Massachusetts state courts, it could do so tomorrow.

As far as federal court goes, it only applies if the court has jurisdiction to hear your case. The Seventh Amendment tells us that you have the right to a jury if you get to trial (in certain circumstances), but it says nothing about whether the court is allowed to hear your case. Jurisdiction in federal courts is granted by Congressional statute (subject to the limits of Article III), and you only have a right to get into federal court if your case falls under one of these statutes. Otherwise, no federal court, and no Seventh Amendment.

2) I wish this were true, but unfortunately it's not. A contract can be valid even if you never read it and you didn't understand it. What's really important is that they can prove that you made an outward and objective manifestation of your assent to that contract. If the website is set up to require you to agree to terms of service before you create an account, then they prove that. Since you've probably already alleged that you created an account when you filed the lawsuit, you're probably stuck. If you read Judge Easterbrook's opinion in ProCD v. Zeidenberg (https://scholar.google.com/scholar_case?case=118110098054586...), you can get an idea of how that happens. Again, I think it's shitty, but that's how it works today.

1) Do you know of an instance of someone asserting >$20 damages and 7th amendment right to a jury trial being denied?

2) It may or may not be how it works today, but that is only because I have not made the argument (likewise, no one has asserted that I violated their language).

> If the website is set up to require

If a company wants to take the argument this far, they will have to produce all their code, including the code that was running the day they claim I assented. They will have to prove that it is not possible to use the software without assent of the user to their language.

1) Most companies will not produce their code (and likely won't be able to produce the code that you used) and will fail on their claim.

2) Most companies will not be able to prove that their code requires a user to assent before usage.

3) I can't imagine anything short of video evidence of a user staring at a screen, scrolling through all of their language, then considering their options and making a decision as proof of assent. The claimant just doesn't know what happened. Because, well, they weren't there and took no verifiable record of it.

As far as asserting more than $20 in damages and getting thrown out of court on jurisdiction: tons and tons and tons. Happens all the time. Here's an example: https://scholar.google.com/scholar_case?case=768942503267893.... This was back when the jurisdictional requirement for diversity cases was $50,000 (it's now $75,000). Plaintiff didn't allege enough damages, and he got thrown out of court.

You may want to reconsider your assertion that it works this way because you haven't made this argument in court. Lots and lots of people have tried to argue that clicking can't form a binding contract, and they lose. Have a look at https://scholar.google.com/scholar?hl=en&q=clickwrap&btnG=&a... for gobs of cases where clickwrap contracts have been held valid and enforceable.

Here's what will happen after you file your lawsuit against the company with an arbitration clause. First, the company you're suing will file a motion to compel arbitration. You'll say "wait a minute, I didn't agree to shit." If you're lucky, the judge lets you do some limited discovery on the issue of whether you agreed. You'll get to take some discovery, but so will they. And what they'll do is take your deposition. That means that you have to show up for them to ask you questions under oath. This isn't in court in front of a jury, but you can't lie, and everything you say is recorded by the stenographer. Here's how that will go:

Q: Mr. Jsprogrammer, have you ever created an account on ZZ website? A: Yes. Q: And what is the username of that account? A: jsprogrammer. Q: When you created that account, did you use ZZ website? A: Yes. Q: I'm handing you now what's been marked for identification as exhibit 1. Do you recognize this? A: Yes. Q: What is it? A: It's the registration screen for ZZ website. Q: And is this how the screen appeared when you created your account? A: I don't know. Probably. Q: Would it be fair to say that it is at least very similar to the page that you saw? A: Yes, that would be fair to say. Q: On the document I handed you, do you see the checkbox next to the words "I agree to the terms of service."? A: Yes. Q: When you created your account, did you select that checkbox on the screen?

Now what do you do? You can say you don't remember. Or you can say yes, because you know you checked it. Or you can say no and commit perjury (not a good idea).

Deposition in hand, they'll amend their motion to compel arbitration. They'll include a sworn declaration from their developer lead, saying that there is literally no way to create an account without agreeing to the terms. They'll attach the terms, with a sworn declaration from the guy who's in charge of updating the terms saying that these were the terms, as they appeared, on the day you created your account. Finally, they'll attach your deposition, where you (if you didn't commit perjury) don't deny that you agreed to the terms.

So now what's the judge going to do? When the company refuses to turn over their source code and you ask the judge to make them turn it over, she is going to ask you why you didn't deny checking the box. You're not really going to have a good answer for that. Then, she's going to come to the natural conclusion: it's because you did check the box. Then the judge will dismiss the case, and you'll go to the arbitrator.

You're changing the target. As for your example, it doesn't appear that the plaintiff asserted 7th amendment rights to a jury trial. AFAIK a court will throw you out on the first technical violation.

As for the deposition, my answers would be that I have no idea if that screen was similar to any screen I saw on the vendor's site or what buttons I may have pushed (I may see dozens of these screens from multitudes of vendors in a single day) and would ask them if it was the exact same screen I was displayed when I visited their site, how they know, and what evidence they have that it is. I'd then ask them to turn over any evidence that they claim.

I don't believe I'm changing the target. I'm trying to explain that the way that you see the 7th Amendment -- as giving you an ultimate right to a jury trial in all civil cases over $20 -- is simply not what the 7th Amendment does. You can make this argument, that you've asserted $20 in damages and you want your jury, but you will lose. If you would like to see your argument addressed specifically by a court, in the context of arbitration, have a look at https://scholar.google.com/scholar_case?case=842506548303475....

As far as your deposition goes, you don't get to ask any questions. It will last all day, all you get to do is answer questions. You get to ask questions when you take depositions, and you can ask all of the questions that you mentioned, but it won't get you far. After all the discovery is done, they're going to have pretty good circumstantial evidence that you checked the checkbox by virtue of signing up for the account, and you're going to have literally no evidence showing that you didn't. This is not going to make the judge believe you.

Look, at the end of the day, here's what you're up against: 1) a strong policy in favor of arbitration agreements (courts use those exact words in their decisions), 2) a judge who wants cases of her docket, 3) big business with limitless lawyering resources who want to make absolutely sure that the arbitration clause will be enforced.

I'm not saying that you can't beat it. It's possible, and sometimes companies do lose on their motions to compel arbitration. But what I am saying is that you will usually lose. This is a really, really bad thing for consumer rights, and it allows businesses to engage in flagrant unlawful and fraudulent activity with no fear that they will ever have to answer for it out of their wallets. The solution to this problem is not to cover your eyes and ears, ignore the doctrine, and insist that you can beat these clauses in court. You can't. The answer is to get Congress to crack down on predatory arbitration clauses so that businesses have to answer for their wrongdoing in courts like the rest of us do. Maybe that's just as lofty a goal, but at least it recognizes that there is a problem, and it needs to be fixed.

I should add that what I'm trying to illustrate here is that arbitration clauses are a big problem. Arbitration is a stacked deck, and consumers always lose. They lose even when they win, since you can only arbitrate your individual claim.

The clauses are very difficult to fight in court, and they deprive consumers of rights they don't even know they're giving up. Arbitration effectively allows companies to bilk consumers out of money and then make it so expensive to recover that the consumer (or her lawyer) won't bother. It's legal, and it's constitutional, but damn is it shitty.