Arbitration Nation – A Funny Thing Happened On The Way To A Democracy

Chris Stombaugh, President
Wisconsin Association for Justice

Quick history lesson. The founding fathers were well on their way to creating the US Constitution in the fall of 1787. That incredible document which changed the world some 200 plus years ago and is still the backbone of our government today.

Ratification of the Constitution had started strongly but was slowing. States like New York and Virginia felt there wasn’t enough protection for ordinary citizens.That’s when James Madison, a primary author of the Constitution, began drafting the ten amendments which became the Bill of Rights.

Many are well known. Freedom of speech and religion are part of the First Amendment. Right to bear arms? The Second Amendment. The right to trial by a jury? Anyone?

The Seventh Amendment. Considered one of the more straightforward amendments, citizen jurors would decide a civil case as long as there was a dispute over at least $20 in value.

The amendment is a microcosm of a perfect democracy. Instead of voting for someone else to make decisions on your behalf, the jurors, as citizens, are the government. Twelve citizens, remarkable in their commonality, are the decision makers. Jurors decide guilt, innocence, right, wrong, and damages.

The original thirteen states ratified the Seventh Amendment and the nine other amendments in two years. America would have a jury system to resolve legal questions.

A defining element of our new democracy had been created and it has held up well against a variety of legal challenges in the last 227 years.

So why then are juries seemingly fading away?

I would suggest it is because the jury system was working so well that much of corporate America has learned the last place they ever want to be is in a courtroom of regular folks. There are simply too many variables those titans of industry can’t control as they can when they wield their ill-conceived financial influence in front of Congress and state legislatures.

Need proof? Let’s start with the emphasis on binding arbitration.

In an effort to stay out of court, companies have become masters at forcing consumers to accept binding arbitration as a way of stacking the deck in the event of a disagreement. Binding arbitration clauses are buried in everything from job offers to car deals to the breakfast cereal you eat.

If you find yourself in binding arbitration, leave any illusion of fairness at the door. Odds are your opponent chose the arbiter, is paying their bill, and if you lose it’s likely you won’t be able to appeal.

There is also the illusion that fewer trials are proof the legal system is working when in reality it’s just the opposite. Fewer trials mean that citizens will be even less involved in the government. Fewer trials likely mean that people who can least afford it are being pressured to settle cases if not being prohibited from even going to court. Of equal importance, citizens are deprived of the opportunity to appreciate the jury system and obtain firsthand confidence in it.

I saw a quote the other day that chilled me. A public relations spin doctor was trying to explain why it  was a good thing there are fewer cases going to court. “It’s difficult for a jury…to handle that kind of thing.” I could almost hear the smugness in his voice.

James Madison would have rolled over in his grave. Of course, some jury decisions are difficult, that’s the point. That’s why we usually have twelve people on a jury instead of one. Truth be told, the spinmeister was clearly more worried about what would happen if his boss ended up in court than how hard a jury would have to work.

The irony of that jury statement aside, a dynamic legal system could be exactly what James Madison had in mind for the Bill of Rights. Supreme Court Justice Anthony Kennedy once wrote, “…jury service preserves the democratic element of the law.”

Maintaining a truly independent court system takes work and preventing legitimate cases from coming to court undermines the entire system. September is the month when Wisconsin honors the thousands of our citizens who sacrifice time out from their busy lives to serve on a jury. More than two centuries after the Seventh Amendment was written we are a stronger nation because of its crystal clarity.

Bottom line, there is no better group to take on a “difficult” decision of guilt or innocence, liabilities and damages than a jury of your peers.

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