It’s rare for me to rely on anyone else’s blog post for the text of my own, but I thought Paul Bland, Executive Director of Public Justice made some great points recently in his article about the Tea Party–those staunch Constitutional purists who tend to toe the Republican line–and the “arbitration first” culture of modern business. Arbitration is a contractual dispute-resolution strategy that is used with increasing frequency, often in non-negotiated contracts like credit card agreements. It’s awful for consumers. Want to opt out? Just give it a try, and see what happens.
Bland notes the following:
A central aspect of the Supreme Court’s jurisprudence around forced arbitration is disdain for the right to a jury trial. Does a given clause require arbitration of a particular claim or not? According to the Supreme Court, courts should strive to read arbitration clauses to find that claims must be arbitrated. This amounts to a presumption that people have waived the right to a jury trial. With every other constitutional right one can name, there is a legal presumption that people have not given it up unless high hurdles are proven. Not so with the right to jury trial, according to the U.S. Supreme Court.
Tea Party voters are famously interested in American history, and value it. If one looks at the views of the Founding Fathers (as opposed to the views of banking lobbyists) one sees an enormous reverence for the jury. The Seventh Amendment to the Constitution enshrines the right to a jury trial, and all of the original state constitutions did the same thing.
The Declaration of Independence specifically notes that it was deeply unfair for the king to appoint judges, where the king could also fire them if they didn’t rule as he likes. (If that doesn’t sound like forced arbitration to you, then you haven’t been following this area of law very closely.) The Declaration prescribed a remedy for this ill: a robust right to a jury trial. I do not understand how jettisoning this key element of American history in favor of corporate chosen tribunals is in any way consistent with Tea Party values.
Those of us who feel that arbitration is over-used–and you can definitely count me among that number–may find a certain empathy with the Tea Party, oddly enough. Or at least, we may find a common enemy in the increased use of arbitration.