Shake Shack wants you to shit yourself to death (permalink)
Shake Shack has changed the terms of service for its app, adding a "binding arbitration" clause that bans you from suing the company or joining a class action suit against it:
https://shakeshack.com/terms-conditions#/
As Luke Goldstein writes for Jacobin, the ToS update is part of a wave of companies, including fast-food companies, that are taking away their customers' right to seek redress in the courts, forcing them to pursue justice with a private "arbitrator" who works for the company that harmed them:
https://jacobin.com/2025/10/shake-shack-arbitration-law-terms-service/
Now, obviously you don't have to agree to terms of service just to walk into a Shake Shack and order a burger (yet), but Shake Shack, like other fast food companies, is on a full-court press to corral you into using its app to order your food, even if you're picking up that food from the counter and eating it in the restaurant. This is an easy trick to pull off – all Shake Shack needs to do is starve its cash-registers of personnel, creating untenably long lines for people attempting to order from a human.
Forcing diners to use an app has other advantages as well. Remember, an app is just a website skinned in the right kind of IP to make it a felony to add an ad-blocker to it, which means that whenever you use an app instead of a website, you are vulnerable to deep and ongoing commercial surveillance and can be bombarded with ads without you having any recourse:
https://pluralistic.net/2024/01/24/everything-not-mandatory/#is-prohibited
That surveillance can be weaponized against you, through "surveillance pricing," which is when companies raise prices based on their estimation of your desperation, which they can infer from surveillance data. Surveillance pricing lets a company reach into your wallet and devalue your money – if you are charged $10 for a burger that costs the next person $5, that means your dollar is only worth $0.50:
https://pluralistic.net/2025/06/24/price-discrimination/
But beyond surveillance and price-gouging, app-based ordering offers corporations another way to screw you: they can force you into binding arbitration. Under binding arbitration, you "voluntarily" waive your right to have your grievances heard by a judge. Instead, the corporation hires a fake judge, called an "arbitrator," who hears your case and then a rebuttal from the company that signs their paycheck and decides who is guilty. It will not surprise you to learn that arbitrators overwhelmingly find in favor of their employers and even when they rule in favor of a wronged customer, the penalties they impose on their bosses add up to little more than a wrist-slap:
This binding arbitration bullshit was illegal until the 2010s, when Antonin Scalia authored a string of binding arbitration decisions for the Supreme Court, opening the hellmouth for the mass imposition of arbitration on anyone that a business could stick an "I agree" button in front of:
https://brooklynworks.brooklaw.edu/cgi/viewcontent.cgi?article=1443&%3Bamp%3Bcontext=blr
A fundamental tenet of conservative doctrine is "incentives matter" – that's why they say we can't have universal healthcare (if going to the doctor is free, you will schedule frivolous doctor's visits) or food or housing assistance (unless your boss can threaten you with homelessness and starvation, you won't go to work anymore). However, this is a highly selective bit of dogma, because incentives never seem to matter to rich people or corporations, whom conservatives are on an endless quest to immunize from any consequences for harming their workers or customers, which somehow won't incentivize them to hurt their workers and/or customers:
https://pluralistic.net/2022/06/12/hot-coffee/#mcgeico
At this point, we should probably ask, "Why would anyone sue a Shake Shack?" To answer that, you just need to look at why people sue other fast-food restaurants, like McDonald's and Chipotle. The short answer? Because those restaurants had defective food-handling and sourcing procedures, and this resulted in their customers contracting life-threatening food-borne illnesses:
By immunizing itself from legal consequences for the most common sources of liability for fast-food restaurants, Shake Shack is reserving the right to make you shit yourself to death. Combine this immunity with Trump's unscheduled rapid midair disassembly of all federal regulations (AKA "Project 2025") and you get a situation where Shake Shack can just make up its own money-saving hygiene shortcuts, and face no consequences if these result in your shitting yourself to death. This is both literal and figurative enshittification.
Of course, Shake Shack doesn't believe this should cut both ways. You can't slip out of Shake Shack's noose by walking into a restaurant with a t-shirt reading:
By reading these words, you agree, on behalf of your employer, to release me from all obligations and waivers arising from any and all NON-NEGOTIATED agreements, licenses, terms-of-service, shrinkwrap, clickwrap, browsewrap, confidentiality, non-disclosure, non-compete and acceptable use policies ("BOGUS AGREEMENTS") that I have entered into with your employer, its partners, licensors, agents and assigns, in perpetuity, without prejudice to my ongoing rights and privileges. You further represent that you have the authority to release me from any BOGUS AGREEMENTS on behalf of your employer. This indemnity will survive the termination of your relationship with your employer.
Shake Shack isn't trying to create a simplified, efficient system of justice – they're creating a two-tiered system of justice. They get to go to court if you hurt them. Vandalize a Shack Shack restaurant and they'll drag your ass in front of a judge before you can say "listeria." But if they cause you to shit yourself to death, you are literally and figuratively shit out of luck.
That's really bad. Two-tiered justice is always and ever a prelude to fascism. The way to keep the normies in line while your brownshirts round up their neighbors and seize their property is by maintaining the "normal" justice system for some people, but not for the disfavored group:
https://encyclopedia.ushmm.org/content/en/article/anti-jewish-legislation-in-prewar-germany
Gradually, the group entitled to "normal" justice dwindles and more and more of us get sucked into the "state of exception" where you aren't entitled to a lawyer, a trial, or any human rights.
Trump isn't just dismantling the regulatory state: his fascist snatch-squads ignore the Constitution and the courts. His supine Congress ignores the separation of powers (Trump: "I'm the President and the Speaker of the House"). This rapid erosion of the rule of law is about to meet and merge with the long-run, Federalist Society project to give corporations their own shadow justice system, where they hire the judges who decide whether you can get justice.