Are We
Losing Our Right to Jury Trials?
Dale G.
Larrimore, Esquire
Larrimore
& Farnish, LLP
Jury trials are a unique part of
America’s democracy. Most countries do not have jury trials and it is one of
the rights that makes us unique — something we should justifiably be proud
of. Some of the Founding Fathers
objected to the Constitution because this right was not included and, in fact,
the first thing that the First Congress did in 1789 was to pass a Judiciary Act
that provided that the trial of civil issues in federal courts shall be by
jury. At the behest of James Madison and others, that same Congress then
drafted the Bill of Rights and the Seventh Amendment passed with no debate,
guaranteeing the right to trial by jury in all civil suits at common law in all
federal court trials.
The Constitution of the Commonwealth
of Pennsylvania, adopted in 1776, even before the United States Constitution,
contains a similar guarantee that in suits between citizens “the parties have a
right to trial by jury which ought to be held sacred.” Many other states
followed Pennsylvania’s lead, enacting state constitutions with similar
guarantees.
Unfortunately, we have seen a recent
whittling away of this fundamental right through the actions of corporations
that have forced mandatory arbitration on many of our consumer
transactions. Far too often I have found
my clients unwittingly trapped by mandatory arbitration provisions contained in
nursing home admission papers, online “click-through” agreements, amateur
athletic activities or in lengthy contract documents for what would seem to be
innocuous purchases and transactions with all types of companies. As a recent
New York Times article noted:
Arbitration clauses have proliferated over the last 10 years as companies have added them to tens of millions of contracts for things as diverse as cell phone service, credit cards and student loans. Nursing homes in particular have embraced the clauses, which are often buried in complex contracts that are difficult to navigate, especially for elderly people with dwindling mental acuity or their relatives, who can be emotionally vulnerable when admitting a parent to a home.
In September, the Centers for
Medicare and Medicaid Services (CMS) issued regulations that would prohibit
facilities that receive Medicare funding from using binding arbitration clauses
in long-term care contracts, noting “predispute arbitration clauses are by
their very nature unconscionable.” Unfortunately, industry trade associations
sued to block the rule and a federal court judge in Mississippi granted the
nursing home industry’s request for an injunction to prevent CMS from
implementing the rule.
Earlier in 2016, the Consumer
Financial Protection Bureau (CFPB) issued a proposal that would have prohibited
banks and financial service providers from requiring consumers to waive their
jury trial rights in mandatory arbitration agreements, concluding that “individual
dispute resolution mechanisms are an insufficient means of ensuring that
consumer financial protection laws and consumer financial contracts are
enforced.” But the Republican controlled U.S. House of Representatives passed
an appropriations bill that would strip the CFPB of power to regulate banks’
ability to force arbitration agreements on their customers.
Our
system of government is based on checks and balances and the judicial branch is
co-equal to the executive and legislative branches. Courts have the power to
overturn laws or acts that violate constitutional rights. This system is
dependent on a strong independent judicial branch and this requires a healthy
jury trial option. Jury service gives each of us a chance to have a voice in
determining what is right, and what is wrong, in our society. Jury trials
provide the voice of the people in our civil justice system and, in a civil
lawsuit, a jury of citizens will determine community standards and expectations
in accordance with the law. Juries provide the voice of common sense and the
perspective of all of us, as citizens, in our changing society.
Many if not most contracts that we now
sign for major purchases, such as cars or appliances, have a compulsory
arbitration clause that precludes recourse to civil suit and jury
determination. When we travel, our rights may be limited by forced arbitration
clauses in agreements with cruise lines, tour companies or professional travel
agencies. Far too often we are giving up our fundamental right to a jury trial
when we sign a contract that is handed to us as part of some transaction or
event that we are participating in.
We have come a long way from our
Founding Fathers’ defense of the “inestimable right of trial by jury.” We need
to fight this trend. Be careful when signing contracts. Cross out the forced
arbitration clauses. Tell your elected representatives that the right to a jury
trial is important to you. We must act to preserve our fundamental rights
guaranteed to us in our Constitution.
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