2003 Forum

2003 Forum for State Appellate Court Judges

The Privatization of Justice? Mandatory Arbitration and the State Courts

July 19, 2003
Hotel Nikko
San Francisco, CA

Click on the links below to read the papers:

The Rise and Spread of Mandatory Arbitration as a Substitute for the Jury Trial, by Professor Jean R. Sternlight

How Can State Courts Approach Mandatory Arbtration in Light of the Federal Arbitration Act?, by Professor David S. Schwartz

Without a doubt, mandatory arbitration poses one of the most serious threats to the right to trial by jury and access to justice in this country. Consumers unknowingly give up their rights to pursue redress in the court system because of clauses buried deep in contracts or that take effect on the purchase or use of a product. Mandatory arbitration clauses are being imposed on consumers not only when they sign up for a credit card or buy a computer, but when they seek medical treatment at a hospital. The 2003 Annual Forum for State Appellate Court Judges will examine this very important issue and will provide judges with useful information not only about the growing use of these clauses, but how they as appellate judges might approach cases involving mandatory arbitration in a manner that protects the rights of their citizens to trial by jury.

The world of mandatory arbitration is undergoing seismic changes as its impact on everyday life and people's rights -- become more apparent. At the same time, it is still business's preferred means of resolving disputes, as credit card companies change their cardholder agreements to incorporate arbitration agreements, computer manufacturers incorporate mandatory arbitration into the seldom-read agreements that pop up on screen when starting a new machine for the first time, and even the American Bar Association is looking at whether to permit lawyers to insist on arbitration of fee disputes, even while condemning them in the health care arena.
These changes in the world of mandatory arbitration raise many serious questions worthy of consideration. State courts are increasingly finding themselves at the forefront of the battle over mandatory arbitration, as it is the state courts, in which the vast majority of litigation in this country occurs, whose doors are most often closed to injured consumers by binding arbitration clauses . As the use of mandatory arbitration clauses becomes more prevalent, as they spread from their traditional arena of business transactions to personal injury and medical malpractice claims, often becoming more draconian in the process, state courts are forced to determine whether or not particular clauses violate the rights of their citizens through unconscionable provisions. But the state courts must do so under the shadow of the Federal Arbitration Act which, under recent Supreme Court decision-making, has preempted state laws protecting the right to trial by jury.

The 2003 Forum featured papers by two of the leading scholars of mandatory arbitration in the county. Professor Jean R. Sternlight, of the University of Missouri-Columbia, will present a paper entitled The Rise and Spread of Mandatory Arbitration as a Substitute for the Jury Trial. Professor Sternlight is the John D. Lawson Professor at the University of Missouri-Columbia School of Law. She is also a Senior Fellow at the Center for the Study of Dispute Resolution. She obtained her B.A. from Swarthmore College and her J.D. from Harvard. Professor Sternlight has been active in the field of dispute resolution as a scholar, through law reform activities, and as a speaker. Sternlight has written many articles on arbitration and mediation, and is a co-author of a casebook on mediation.. She has also frequently been cited by both courts and the popular press.

Relevant Publications by Professor Sternlight
"Mandatory Binding Arbitration and the Demise of the Seventh Amendment Right to a Jury Trial," 16 Ohio St. J. Disp. Res. 669 (2001)

"Forum Shopping for Arbitration Decisions: Federal Courts' Use of Antisuit Injunctions Against State Courts," 147 U. Pa. L. Rev. 91-203 (1998)

"Rethinking the Constitutionality of the Supreme Court's Preference for Binding Arbitration: A Fresh Assessment of Jury Trial, Separation of Powers and Due Process Concerns," 72 Tulane L. Rev. 1-100 (1997)

Professor David S. Schwartz, of the University of Wisconsin Law School, presented a paper entitled How Can State Courts Approach Mandatory Arbitration in Light of the Federal Arbitration Act? Professor Schwartz received his BA and MA degrees from Yale University and his J.D. from the Yale Law School. Prior to joining the UW Law School faculty in the Fall of 1999, Prof. Schwartz was Senior Staff Attorney at the American Civil Liberties Union of Southern California, in Los Angeles. Professor Schwartz teaches Equal Employment Law, Evidence, Constitutional Law, and other courses relating to his practice background. His scholarly interests currently focus on workers' rights and the law of the workplace, civil rights and constitutional law.

Relevant Publications by Professor Schwartz
"Correcting Federalism Mistakes in Statutory Interpretation: The Supreme Court and the Federal Arbitration Act," __ Law & Contemp. Probs. __ (forthcoming 2003)

"Enforcing Small Print to Protect Big Business: Employee and Consumer Rights Claims in an Age of Compelled Arbitration," 1997 Wis. L. Rev. 33 (1997)