When I saw on the Valley Views on the Law Twitter feed that you would be discussing arbitration, it made me think of a constitutional law question for you guys. Isn't there a fundamental constitutional right for people to be able to have their disputes decided in a court of law? So if the government forces you to arbitrate your dispute rather than file a lawsuit, wouldn't that be a violation of the Constitution? I've been hearing more and more about people who wanted to sue a financial corporation or a telecom corporation, and they weren't permitted to have their claims heard in court before a jury. How is that possible?
--Clarence E. Gideon, Panama City, Florida
As we academic lawyers tend to say, Mr. Gideon, you raise a very complicated issue. Because we are talking about civil disputes, that is, not a criminal prosecution where the parties are the government and an accused defendant, the US Supreme Court has never flatly held that the Constitution protects any right to have a civil law dispute decided in a court of law as opposed to some other method of resolution. The Seventh Amendment provides that, "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved," and one could certainly argue that this should be interpreted to imply that there is a constitutional right to "suits at common law." The Seventh Amendment provides that, "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved," and one could certainly argue that this should be interpreted to mean that there is a constitutional right to "suits at common law." However, the first ten Amendments to the Constitution only limit the power of the federal government, and the Supreme Court has not held that all of them are applicable to state governments. The Seventh Amendment is one of the few that were held to be "incorporated" in the 14th Amendment Due Process Clause, so at least as to state courts applying state law, there is no constitutional right to a jury trial. As far as I know, no state has ever failed to provide a system of civil law courts where disputes can be resolved, so a complete denial of the asserted right has never had occasion to be litigated. The situation to which you refer involves a purported agreement between two parties to resolve any disputes they have via arbitration. If such an agreement is enforced, then even if one of the parties wants to file a lawsuit, they are precluded from doing so.
A communist attorney, or worse, a Plaintiff's Class Action Lawyer, might argue that enforcing such an agreement would be a violation of public policy, since the potential is great that unscrupulous persons could take advantage of the less sophisticated or more vulnerable members of society. Another problem is that there might be a great imbalance of bargaining power between the two parties who enter into such agreements. We'll ask our guest about whether those arguments have been decided by the courts. But the members of Congress who represent you and I in Washington have decided that agreements to arbitrate are so wonderful that they enacted a federal law that requires them to be enforced, even if state law provides otherwise so long as there is a connection to interstate commerce. So if you are worried that you might not be able to utilize the courts to protect your rights, just make sure you don't use a mobile phone, or put your money in a bank, or do any business on the internet.