Arbitration Clauses, Jury-Waiver Clauses and Other Contractual Waivers of Constitutional Rights

39 Pages Posted: 24 Nov 2002

See all articles by Stephen J. Ware

Stephen J. Ware

University of Kansas - School of Law

Abstract

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.

JEL Classification: K12, K41

Suggested Citation

Ware, Stephen J., Arbitration Clauses, Jury-Waiver Clauses and Other Contractual Waivers of Constitutional Rights. Law and Contemporary Problems, Vol. 67, p. 167, 2004. Available at SSRN: https://ssrn.com/abstract=337121 or http://dx.doi.org/10.2139/ssrn.337121

Stephen J. Ware (Contact Author)

University of Kansas - School of Law ( email )

Green Hall
1535 W. 15th Street
Lawrence, KS 66045-7577
United States
785-864-9209 (Phone)

HOME PAGE: http://www.law.ku.edu/ware

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