Archive for August, 2012

Whatever Happened to the VII Amendment?

Odds are that you probably don’t even know what the VII Amendment is (the Right to Trial by Jury in Civil Suites). But, being part of the Bill of Rights set forth in the first ten amendments to the Constitution, you probably also think it must have some fundamental importance to our rights as Americans. To be sure, the VII Amendment is vital to the integrity of our judicial process and the health of our third branch (the Judiciary) of government. But, under the guise of forced arbitration, your VII Amendment rights have been eliminated.

The Seventh Amendment states:

“In suits at common law, where the value in controversy shall exceed twenty dollars, the right to trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examine in any Court of the United States, than according to the rules of the common law.”

The language is clear. The right to trial by jury, SHALL be preserved. Yet astonishingly, the Supreme Court recently held in another 5–4 decision, that corporations may unilaterally insert a contract provision into your consumer contract that requires you to arbitrate, on your own, any dispute you may have with the company. This cannot stand.

In an age of passionate debate about the role of government and the intent of the Founding Fathers, there is hardly a day that passes by without earnest discussion of the freedoms and obstacles embodied in the Bill of Rights. Some of those rights are more well known, like Freedom of Expression (1st) and the the Right to Bear Arms (2nd). Others we have absorbed through popular police dramas, like the prohibition against Unreasonable Search and Seizure (4th), the Right Against Self-Incrimination (5th),the Right to a Speedy Trial with the Assistance of Counsel (6th) and the Prohibition Against Cruel and Unusual Punishment (8th).

We appear to have forgotten the 7th Amendment. Arbitration is a direct assault on your Bill of Rights. If Corporate America can successfully take away one of your fundamental rights, corporations and government can take away the rest. That is something we should all be talking about.

What is Arbitration?

Arbitration is not about giving you speedy resolution for a complaint you may have against a corporation. Arbitration is about establishing immunity for corporations.

Arbitration makes perfect sense where two parties to a contract, with equal bargaining power, make the business decision that a private system of dispute resolution is preferable to the courts. But arbitration is inherently unfair and unconscionable where a corporation tells its customer that in order to utilize its services, the customer must agree to arbitrate any claims.

To those corporate apologists yelling that if the customer does not like those terms, then the customer should go someplace else, I hear you. While this sounds perfectly reasonable, the practical truth is that the customer actually has no choice. If you want a cell phone, you have to agree to an arbitration clause since every carrier demands one. The same is true, or soon will be with the Supreme Court’s granting of corporate immunity, across the range of consumer services.

The Bill of Rights were enumerated to protect fundamental rights. Notably, those rights, particularly those dealing with a citizen’s access to courts are concerned not only with the actual right, but also the procedural guarantees that are necessary to give substance to the underlying right. You can have a right to a speedy trial, but that right does not mean much if you also do not have a right to have a counsel assist you in the process. No less is true of a right to a trial by jury. Unilaterally imposing an arbitration clause in your consumer contract, substantively and procedurally denies you a basic Seventh Amendment right to have a jury of your peers determine whether a corporation has harmed you. Forced arbitration is not only unfair, it is inherently un-American.