Of What Value Is a Jury Today? An Updated Empirical Study of Jury Trial Waivers in Large Corporate Contracts
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Authors
Fraley, Elizabeth M.
Issue Date
2020
Volume
53
Issue
2
Type
Journal Article
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Abstract
ABSTRACT|This study seeks to evaluate whether a decade of tort reform and Seventh Amendment attacks have eroded corporate confidence sufficiently to prompt a substantial increase in the use of jury waiver and arbitration clauses. In 2006, Eisenberg, et. al examined jury trial waivers in a data set of 2,816 contracts contained as exhibits in Form 8-K filings with the SEC. Those authors found that only about 20% of such contracts contained express waivers of the right to trial by jury,
with another 9% implicitly waiving the right by agreeing contractually to arbitrate disputes. In the decade since the study concluded, tort reform advocates have devoted substantial time and resources undermining confidence in the jury trial system. During that same period, mandatory arbitration legislation similarly worked to supplant jury trials. Replicating Miller and Eisenberg’s methodology, this study seeks to evaluate the effects of these Seventh Amendment attacks by
examining the prevalence of jury waiver and arbitration clauses since the prior study concluded.
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Publisher
Creighton University School of Law