arbitration clauses, jury-waiver clauses and other contractual waivers of constitutional rights
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ARBITRATION CLAUSES, JURY-WAIVER CLAUSES AND OTHER CONTRACTUAL WAIVERS OF CONSTITUTIONAL RIGHTS
Stephen J. Waresjware@samford.edu
205-726-2413
Alienating the 7th Am Jury-Trial Right
• consenting to a contract containing an arbitration clause
• consenting to a contract containing a jury-waiver clause
STANDARDS OF CONSENT
Contract Law “Knowing” Consent
• arbitration clauses • jury-waiver clauses
STANDARDS OF CONSENT
Contract Law “Knowing” Consent• objective manifestations of consent
• consent to forms w/ few exceptions
• consent to unknown is norm
• subjective “actual” consent
• no consent to formsw/ few exceptions
• sensitive to unequal
bargaining power
STANDARDS OF CONSENT
Contract Law “Knowing” Consent
• arbitration clauses • jury-waiver clauses
Federal Arbitration Act § 2
"written provision . . . to settle by arbitration a controversy thereafter arising out of such contract or transaction . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract."
- unconstitutional for 75 years?
A Reading of the FAA
• FAA covers only contracts between “two sophisticated businesses”
• such contracts always involve “knowing” consent,
• therefore, it was not until the 1980’s (with enforcement of employment and consumer arbitration agreements) that courts started to apply the FAA in an unconst. manner
A Rebuttal
• FAA covers all arbitration agreements “involving commerce” except that it carves out Ks of certain employees
• FAA has no other carve-outs,
• therefore, FAA covers nearly all arbitration agreements
• “knowing” consent is lacking even in many cases involving “two sophisticated businesses”
• therefore, FAA’s alleged unconstitutionality would have been apparent before the 1980’s
A Rebuttal (cont.)
The Supreme Court has expanded the scope of the Commerce Clause since the 1920’s
STANDARDS OF CONSENT
Contract Law “Knowing” Consent• FAA • caselaw on jury-
waiver clauses
- Does 7th Amendment require “knowing” consent for arbitration agreements
STANDARDS OF CONSENT
Contract Law “Knowing” Consent• FAA • caselaw on jury-
waiver clauses
• constitutional waivers in criminal context
• constitutional waivers in civil context
Prof. G. Richard ShellContracts in the
Modern Supreme Court
• Lochner-era, 1870-1937
• New Deal/Warren Court, 1937-1971
• modern Court, 1971-present
STANDARDS OF CONSENT
Contract Law “Knowing” Consent• FAA • caselaw on jury-
waiver clauses
• constitutional waivers in criminal context
• Mitchell due process property deprivat.
STANDARDS OF CONSENT
Contract Law “Knowing” Consent• FAA • caselaw on jury-
waiver clauses
• constitutional waivers in criminal context
• Bremen and Carnival Cruiseapplied to non-U.S. forum
STANDARDS OF CONSENT
Contract Law “Knowing” Consent• FAA • caselaw on jury-
waiver clauses
• constitutional waivers in criminal context
• consent-to- jurisdiction clauses
STANDARDS OF CONSENT
Contract Law “Knowing” Consent• FAA • caselaw on jury-
waiver clauses
• constitutional waivers in criminal context
• jury-waiver clauses pre-Hendrix
Flaws of Hendrix
• no precedent on point
• no authority for jury-trial right “far more fundamental” than due process right
• cites Fuentes without citing Mitchell or Bremen
STANDARDS OF CONSENT
Contract Law “Knowing” Consent• FAA
•Mitchell due process property deprivat.
•Bremen and Carnival Cruiseapplied to non-U.S. forum
•consent-to-jurisdiction clauses
•jury-wavier clauses pre-Hendrix
• caselaw on jury-waiver clauses
• constitutional waivers in criminal context
ARBITRATION CLAUSES, JURY-WAIVER CLAUSES AND OTHER CONTRACTUAL WAIVERS OF CONSTITUTIONAL RIGHTS
Stephen J. Waresjware@samford.edu
205-726-2413
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