Forced arbitration

Losing your constitutional rights, “One Piece at a Time”

2015 September

This column is about a serious threat to your Constitutional rights that attacks the very core of America’s legal system. But, I want you to actually read the column, so I’m going to begin by telling you about a Johnny Cash song.  Trust me; we’ll get to the serious stuff in a minute.

Cash’s last No. 1 Country hit was a 1976 song called One Piece at a Time. It’s the story of an autoworker who works on an assembly line and who over 20 years steals a brand new Cadillac – one piece at a time.

The lyrics written by Wayne Kemp read in part:

I’d get it one piece at a time

And it wouldn’t cost me a dime

You’ll know it’s me when I come through your town

I’m gonna ride around in style

I’m gonna drive everybody wild

So what does a Johnny Cash song have to do with a grave threat to our Constitution?

The threat is forced arbitration, and it takes away your Constitutional right to a jury trial for civil suits. The Founding Fathers felt this right was so important they included it in the first proposed amendments to the Constitution and eventually the Bill of Rights.

Words from the forefathers

The Seventh Amendment to the U.S. Constitution reads:

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 re-examined in any Court of the United States, than according to the rules of the common law.

James Madison went further when he said:

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.

Thomas Jefferson wrote:

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.

We all know that corporate interests don’t want to be held accountable when they do something wrong, harmful or illegal.  They would love for you to abandon your right to a jury trial or class- action lawsuit and agree instead to take your grievance to a paid professional outside of the legal system.

They also know that if this was presented in a proposal to amend the Constitution that asked you to sign away your right to sue, it would have zero chance of passing. So instead, they took the advice of Johnny Cash’s 1976 song, and put together a plan to take away your rights “one piece at a time.”

Facing the consequences

Linda Lipsen, CEO of the American Association for Justice (AAJ) wrote:

The U.S. Chamber’s legal “reform” front group – the Institute for Legal Reform (ILR) – has been at the heart of a massive campaign to eliminate corporate accountability, even in cases involving huge violations of state and federal law.  For decades, this strategy has primarily revolved around high profile PR campaigns to portray the civil justice system as swamped by frivolous lawsuits. But where a billion-dollar tort “reform” campaign has not succeeded in closing the courthouse door, forced arbitration has been used with increasing frequency to shield corporations from accountability and replace the courthouse altogether.

Six years ago, consumer columnist David Lazarus wrote in the L.A. Times:

If you have a credit card, a cell phone or even just a job, chances are you’ve already signed away your right to sue if something goes wrong.  Mandatory arbitration clauses have become a routine part of the fine print in most financial, telecom and employment contracts, as well as numerous other customer agreements.

Lazarus wrote that in 2009 and arbitration has now become part of virtually all consumer interaction with corporate or medical interests.

Losing the right to trial by jury is not just important to plaintiff trial attorneys.  Any judicial officer or practicing civil attorney understands how serious this threat to the Court has become. The Pound Civil Justice Institute recently released the report of its 22nd annual Forum for State Appellate Court Judges – Forced Arbitration and the Fate of the 7th Amendment: The Core of America’s Legal System at Stake?

The Judges Forum was a full-day conference, open only to judges and attended by 144 state court judges from 36 states. The 172-page report is based on transcripts of the Forum’s plenary sessions and small group discussions and on original papers written for the Forum by Professor Myriam Gilles of the Benjamin N. Cardozo School of Law, Yeshiva University and Professor Richard Frankel of the Earl Mack School of Law, Drexel University. The complete report can be downloaded for free at http://poundinstitute.org

In her paper, Professor Gilles wrote:

A full-throated defense of the litigation system is necessary to defeat the anti-lawsuit message.  Or else, the primary casualties will be the law itself, in its capacity to deter wrongful conduct, publicize norms of behavior, transparently and fairly resolve disputes, and provide access to all who seek justice.

One of the attending judges said the following about Forced Arbitration:

If people think they still have the right to sue after signing a contract, that means they are clinging to something very deep – their right to bring an action that they don’t believe they could possibly have signed away.

That would never happen if the public was openly asked to give away their Constitutional rights.  However, losing those rights “one piece at a time” is a different story.