It’s time for an Air Traveler’s Bill of Right.

When a customer pays for a confirmed seat, they deserve to fly without fearing the capricious whims of the carrier. United must be forced, as a matter of law, to continue raising the auction price until someone elects to leave voluntarily.

Being forced off a flight is no small matter. A missed flight might mean a missed wedding, a lost job, a vacation foregone, or even failing to make it to a loved one’s bedside before they pass. The opportunity cost of a missed flight is deeply personal to each passenger’s situation, and for some, the impact is beyond what can be measured with money. When there are too few seats for too many people, the airlines are poorly equipped to determine which passengers are best able to bear the inconvenience.

An auction is the *only* fair way to identify both the least inconvenienced passenger, and the fair compensation for their inconvenience.

But don’t hold your breath waiting for airlines to come to this conclusion on their own. The current system, outlined in each airline’s “carriage contract”, legalizes the set of rules that best represent the interests of the airlines. Overbooking reduces empty, wasted seats and thus increases revenue per flight. That’s not inherently a problem; however, by not paying the full downside risk when passengers are bumped, airlines are incentivized to overbook even more aggressively, prioritizing fuller seats over guaranteed rides. This creates a small increase in economic efficiency, that, in an industry with razor-thin margins, becomes irresistible.

These “carriage contracts” represent a fundamental power imbalance between airlines and the consumers that depend upon them. The airlines, represented by some of our society’s sharpest legal minds, have spent years “negotiating” clauses into their carriage contracts to legalize the rules that best represent their self interests. On the other side of this “negotiation” is a consumer, represented by no counsel, clicking the “I agree” button to purchase a flight.

Oh, but the airlines compete and customers can switch, so competition will result in the right outcome! Hogwash. Even if customers did have a choice between carriers with materially different contract terms, few passengers have the legal sophistication to understand the contract language, and how it will be applied across a variety of hypothetical situations. Because consumers don’t understand the legalese that they sign (until it bites them), having better “fine print” doesn’t create a competitive advantage. Airlines, not seeing “fine print” as a point of competition, tend to adopt the most aggressive contract language allowable by law, resulting in substantially similar contract language across all airlines. Given that all of these contracts run to dozens of pages, are tediously dull, and again, substantially similar between all carriers, what incentive does a consumer have to read or care about the contract terms that they habitually sign?

Even if an exceptionally motivated passenger paid for legal review and discovered a problematic clause, no airline is going to engage in legal negotiations with a single passenger. No, that’s an absurdity. To have any negotiating leverage at all, passengers would have to band together and organize, using their combined weight to rebalance the power dynamic. This “organization” is the role of our elected representatives.

Our government has a fundamental role to play in rebalancing the power dynamic between well-lawyered organizations and the consumers that must sign their contracts in order to participate in modern society.

It is long passed time for our congress to do their jobs and pass an Air Traveler’s Bill of Rights that ends these abusive practices once and for all.