Should there be rights that you cannot give away?

I saw this interesting entry over at the Consumerist about binding arbitration invading every part of our lives. It got me to thinking about the nature of rights in business transactions. Would we be better off as consumers if there were rights that could be eliminated by contract?

Obviously, there are already many things that cannot be forced on you in a contract. I am no lawyer, but surely they could not force you to cough up a pound of flesh for missing a car payment (or maybe they could?). If most contracts force binding arbitration and they are virtually unavoidable, are you willingly agreeing to those terms? If you have no other choice, isn't it some sort of de facto coercion. Sure, you could forgo credit cards, building anything, buying a car, getting a cell phone, but is that a reasonable position?

Tort reform is often cited as a solution to many of these problems, but I cannot support tort reform in any form I have seen presented. I can understand the frustration with outlandish lawsuits, but I also value the protection affording by being able to sue. There are two things about tort reform that are important: First, how do you limit liability, but still successfully punish companies that knowingly endanger consumers? Second, I think much of the perception about outlandish lawsuits is overblown. Many jury verdicts are overturned on appeal. The media hypes these decisions, but then gives much less coverage when they are overturned. It seems that the system could use a tweak, not an overhaul.

Like all things related to public policy you cannot avoid bad outcomes all together. If you pass tough tort reform, many consumers will suffer without recourse. Under the current system, some companies will suffer from frivolous lawsuits (like when another company sues over a bogus patent).