Off Topic: Arbitration Madness

Jury trials are an important component of our republic. The Seventh Amendment to the United States constitution says:

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

Despite this declared intent, Big Business doesn’t like jury trials. They prefer arbitration with arbitrators bought and paid for by Big Business. The Big Business Barons will do anything to stay out of court and away from juries, except when they are suing each other.

In the employment law context, more and more employers are requiring their employees to sign mandatory arbitration agreements to keep their employment practices away from public scrutiny.

Big Business says arbitration is better for everyone because the cases are resolved quickly and cheaply compared to expensive litigation in the courts.

Of course, I have a big problem with this. If two sophisticated parties on equal footing agree to arbitration, well that’s one thing. But when an employer requires an employee to “agree” to binding arbitration, that’s not fair to the employee.

Same goes for these adhesion contracts we all see but never read. Those car rental agreements, cell phone agreements, car purchase agreements and so on. These “agreements” are written by armies of lawyers paid by Big Business to make sure Big Business has the upper hand.

When the print is small and it goes on for pages, it’s clear without reading the text that the “agreement” is not for the consumer’s benefit.

Nevertheless, our Supreme Court seems to love arbitration.

The New York Times published a two-part series on this issue and it’s worth reading.

I wonder why Big Business thinks so little of its customers.


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