Outsourcing American Civil Justice: Mandatory Arbitration Clauses In Consumer And Employment Contracts

Source: Judge Craig Smith and Judge Eric V. Moye, Texas Tech Law Review, Winter 2012
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The Seventh Amendment right to a jury trial is vanishing before our very eyes. Many sources point to the increased reliance upon alternative dispute resolution, and mandatory arbitration specifically, as an explanation for this trend. As practicing attorneys, we never paid much attention to the increasing impact arbitration was having on our civil justice system. Since taking the bench, however, we have witnessed an alarming increase in the use of contract clauses mandating arbitration as a mechanism to take the resolution of civil conflicts away from citizen-juries and place it instead into the hands of professional arbitrators. The practical effect of enforcing these provisions is a paradigmatic shift in our civil justice system-no longer is it based upon the fundamental right of trial by jury. A person cannot open a bank account, obtain a credit card, buy a car, or use a cell phone without contracting away the Seventh Amendment right to a jury trial. In reality, a person must yield his or her very access to the courts in order to meaningfully participate in our modern society. Slowly but surely, the widespread enforcement of mandatory arbitration clauses has chipped away at the basic tenets of contract law and of the fundamental freedoms upon which our nation was founded: the right to a jury trial in civil cases.

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