Arbitration Clauses, Jury-Waiver Clauses and Other Contractual Waivers of Constitutional Rights
Issue Date
2004Author
Ware, Stephen J.
Publisher
Duke Law School
Type
Article
Article Version
Scholarly/refereed, publisher version
Metadata
Show full item recordAbstract
Consenting to a contract containing an arbitration clause or a jury-waiver clause alienates or waives the Seventh Amendment jury-trial right in federal court. The standards of consent in arbitration law, however, tend to be lower than the standards of consent in the federal caselaw governing jury-waiver clauses. The Federal Arbitration Act (FAA) requires courts to apply contract law's standards of consent to arbitration agreements, while certain commentators argue that courts are instead constitutionally required to apply the higher standards of consent (knowing consent) found in the caselaw governing jury-waiver clauses. This article responds to these commentators and argues that the FAA's contract-law standards of consent are constitutional.
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Citation
Stephen J. Ware, Arbitration Clauses, Jury-Waiver Clauses and Other Contractual Waivers of Constitutional Rights, 167-205 (2004).
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