WASHINGTON, June 1, 2014 – Madonna made news recently when she got a doctor’s note to avoid jury duty.
It’s rare to find someone excited over jury duty. If they’re out there, I’ve never met them. When the summons for jury duty arrives, how many people scream “Yes!” and run to clear the calendar? None.
Our first and only reaction is “Oh no” quickly followed by “How can I get out of this?” Regina Brett, NY Times bestselling author.
The material girl’s no-show was not meant to be a statement about the often-futile system of civil justice in America, but it might as well have been.
Trial by jury was considered one of the strongest pillars of our law.
“In civil suits the parties have a right to trial by jury and this method of procedure shall be held sacred.” — Massachusetts Constitution, 1780.“The civil jury trial is preferable to any other and ought to be held sacred.” Virginia Declaration of Rights, 1776.
“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.
Perhaps we shouldn’t be so quick to fret when called for jury duty. What if our right to a jury trial was taken away?
It almost has been.
The influence of big business on our Supreme Court and elected officials over the years has resulted in a reality that civil “justice” is a joke, particularly for consumers and most employees. Our “right” to go to court has been virtually eliminated and in its place, the process of binding arbitration now resolves most consumer, employment, anti-trust, and civil rights disputes. Arbitration has virtually eliminated an aggrieved person’s right to go to court and seek justice.
The concept of “fairness” is a fairy tale.
The “right” to a civil jury trial to decide a dispute in countless arenas has been eliminated. Instead, consumers and workers are confronted with contractual “mandatory” arbitration clauses which are in small print and which are not “bargained for” in the process of buying a product or accepting employment.
Most contracts we sign with big business today include these mandatory arbitration clauses. These include contracts for cell phones, credit cards, mom’s or dad’s nursing home, and even on-line user agreements. Thus, when presented with these contracts, often in difficult-to-understand legalese, we routinely sign, and we “voluntarily” give up the right to file a lawsuit if there are problems.
How did we get to this place?
In 1925 Congress passed the Federal Arbitration Act (FAA), which was designed to address commercial arbitration agreements between companies of generally equal bargaining power. Over the years the Supreme Court broadened the reach of the FAA, ignoring evidence that it was never intended to apply to consumer or employment disputes, or to supersede other federal laws protecting consumers, workers and small businesses. The Court, always ignoring the little guy, continuously ruled that “private agreements” to arbitrate must be enforced according to their terms.
Right. But what happens when there is effectively no choice in signing the contract? Few people realize or understand the importance of the fine print that strips them of rights. Because entire industries use these clauses, people increasingly have no choice but to accept them if they want necessary medical care, or if they want to buy most consumer products, including cell phones and cars, or if they want to open a bank account, or get a credit card.
Arbitration is not fair, it is not open, nor transparent, it is mandatory, and arbitrators are biased.