Private Law Theory

ABSTRACT
Law in the United States provides a constitutional right to a jury trial not only in criminal cases but also in many civil cases. However, parties often unknowingly trade away their civil jury rights in so-called ‘adhesion’ contracts the form contracts businesses present on a take-it-or-leave-it basis to consumers, workers, and others who typically do not read, let alone understand, the whole contract. Courts in the US typically enforce the unread arbitration clauses of such contracts, so arbitration law in the US routinely makes superficial ‘adhesive’ consent sufficient to trade away the constitutional right to a jury in civil cases. This article explains this aspect of arbitration law in the US and contextualizes it by also discussing non-arbitration adhesion contracts that similarly trade away constitutional rights in the US, and by offering an international comparative perspective.

Following this introduction, Part A places arbitration law in the context of dispute resolution in the US. Then, Part B explains how the Federal Arbitration Act enforces arbitration agreements according to the easily satisfied consent standards of general contract law, which results in the enforcement of most adhesive arbitration agreements. Part C shows that the FAA’s widespread enforcement of adhesive arbitration agreements is unusual from an international comparative perspective. Part C shows also that arbitration agreements in the US typically trade away a right that, although it exists virtually nowhere else in the world, is constitutional in the US, the right to a civil jury.

Part D notes that arbitration agreements are not the only agreements trading away the civil jury right, as this right is also traded away by agreements permitting parties to litigate disputes but requiring that, if such litigation requires a trial, the trial will be before a judge rather than a jury. In other words, these clauses call for a bench trial rather than arbitration to replace what might otherwise have been a jury trial, so these clauses may be called ‘bench trial clauses’.

Ware, Stephen J, Contracting Away Constitutional Rights in the United States: Adhesive Consent (Blanket Assent) to Arbitration and other Agreements (October 16, 2024).