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Hope against the erosion of our constitutional right to a jury trial.

The 7th Amendment to our nation’s constitution provides “in suits at common law . . . the right of trial by jury shall be preserved . . .” which is a cornerstone of our judicial system. The founding fathers were well aware that a court of law, with a jury of our peers was the only forum in which a common man could attain justice against the government, the rich, and the powerful.

“I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” -Thomas Jefferson

“In suits at common law, trial by jury in civil cases is as essential to secure the liberty of the people as any one of the pre-existent rights of nature.” -James Madison

“That in controversies respecting property, and in suits between man and man, the ancient trial by jury is preferable to any other, and ought to be held sacred.” -George Mason

In the past 15-20 years there has been an attack on our right to a jury trial. The attack has come from many angles. Tort reform legislation has limited the authority of juries to decide cases. Media campaigns from insurance companies and big business have caused people to believe juries are “out of control” which has prejudiced the jury pools before they even hear any testimony. Lastly, the proliferation of arbitration clauses in many areas of our lives such as cell phone contracts, employment agreements, student loans, insurance policies, credit card agreements, and nursing home contracts has stripped many consumers of their right to a jury trial.

Arbitration clauses force disputes into a private justice system where cases are resolved behind closed doors by a professional arbitrator. Unlike juries who decide one case, based on the facts of that case, professional arbitrators work with the same attorneys, insurance companies, and corporations on many cases. Their decisions may be impacted by their desire to continue to be hired as an arbitrator. Most troubling, however, is the fact that these decisions are made away from public scrutiny. The system allows corporations to hide facts of their wrong doing from the public which makes them less accountable. Patterns of wrongdoing that can be brought to light in court proceedings can be kept under wraps and allowed to continue in the arbitration arena.
Supporters of arbitration clauses argue that these clauses are in a contract the consumer has agreed to be bound by. This playing field is not level. These contracts are not ones in which the consumer really has any bargaining power. They are “take it or leave it” contracts.

“The sad reality is that today too many Americans must choose between forfeiting their legal rights and getting adequate medical care,” Senator Patrick Leahy

There is some hope, however, that these arbitration clauses will finally be seen as an attack on our constitutional rights. On September 28, 2016, the U.S. Health and Human Services Department issued a rule that bars any nursing home that receives federal funding from requiring that its residents resolve any disputes, including nursing home neglect in arbitration, instead of court. The rule promises to restore a fundamental right to more than 1.5 million residents of nursing homes. Last May, the Consumer Financial Protection Bureau, the nation’s consumer watchdog, drafted rule that would prevent credit card companies from using arbitration clauses that bar consumers from banding together in a class-action lawsuit.
These recent changes by federal agencies are a good start but more needs to be done. Legislative change might seem impossible as insurance companies and large corporations have pumped millions into their lobbying efforts. However, if enough people become aware of the proliferation of arbitration clauses and the impact they have on their constitutional rights, maybe our voices can be heard by our representatives. Maybe a grass roots campaign can prompt the legislature to act to preserve our right to trial by jury.

About the Author Erik Ladenburg

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