forced arbitration fate of the 7th amendment

182 Pages·2015·4.87 MB·English

FORCED ARBITRATION
AND THE
FATE OF THE 7TH AMENDMENT
THE CORE OF AMERICA’S LEGAL SYSTEM AT STAKE?
RepoRt of the 2014 foRum foR State appellate CouRt JudgeS
Forum EndowEd by HabusH HabusH & rottiEr s.C.

FORCED ARBITRATION
AND THE
FATE OF THE 7TH AMENDMENT
THE CORE OF AMERICA’S LEGAL SYSTEM AT STAKE?
RepoRt of the 2014 foRum foR State appellate CouRt JudgeS
Forum EndowEd by HabusH HabusH & rottiEr s.C.
When quoting or reprinting any part of this report, credit should be given to the
Pound Civil Justice Institute. Permission to reprint a paper should be requested from:
Pound Civil Justice Institute
777 Sixth Street, NW, Suite 200
Washington, D.C. 20001
www.poundinstitute.org
[email protected]
The endower, Habush Habush & Rottier S.C., has no control over the placement of information
in or the editorial content of the Report of the 2014 Forum for State Appellate Court Judges.
Library of Congress Control Number Pending
ISBN: 978-0-933067-24-0
©2015 Pound Civil Justice Institute
“If people think they still have the right to sue after signing a contract,
that means they are clinging to something very deep—their right to bring
an action that they don’t believe they could possibly have signed away.”
—A judge attending the 2014 Forum
“The courts are supposed to be the place where we get it right, where
we see that all of the cards get played. I don’t think that is happening
anymore. I don’t buy it for a second that arbitration is there to protect
any consumer. It is not. It is there to protect the business model.”
—A judge attending the 2014 Forum

TABLE OF CONTENTS
FOREWORD .........................................................................................................................................................................1
INTRODUCTION ..................................................................................................................................................................3
WELCOME BY HONORABLE MARY ELLEN BARBERA, CHIEF JUDGE, MARYLAND COURT OF APPEALS ....5
MORNING PAPER, ORAL REMARKS, AND COMMENTS .............................................................................................7
“The Demise of Deterrence: Mandatory Arbitration and the ‘Litigation Reform’ Movement”
Professor Myriam Gilles, Cardozo Law School, Yeshiva University ...................................................................7
Oral Remarks of Professor Gilles .......................................................................................................................29
Comments by Panelists, Response by Professor Gilles ......................................................................................33
LUNCHEON ADDRESS .....................................................................................................................................................47
“Consumer Understanding of Arbitration Clauses in Contracts: ‘Whimsy Little Contracts’ with
Unexpected Consequences”
Professor Jeff Sovern, St. John’s University School of Law ..............................................................................47
AFTERNOON PAPER, ORAL REMARKS, AND COMMENTS ......................................................................................55
“State Court Authority Regarding Forced Arbitration After Concepcion”
Professor Richard Frankel, Earl Mack School of Law, Drexel University .........................................................55
Oral Remarks of Professor Frankel .....................................................................................................................81
Comments by Panelists, Response by Professor Frankel ...................................................................................85
THE JUDGES’ COMMENTS ..............................................................................................................................................97
POINTS OF AGREEMENT ...............................................................................................................................................151
APPENDICES ....................................................................................................................................................................153
Faculty Biographies .........................................................................................................................................153
Judicial Attendees .............................................................................................................................................161
Forum Underwriters .........................................................................................................................................165
About the Pound Civil Justice Institute ...........................................................................................................166
Officers & Trustees of the Pound Civil Justice Institute ...................................................................................167
Papers of the Pound Civil Justice Institute .......................................................................................................168
FORCED ARBITRATION AND THE FATE OF THE 7TH AMENDMENT i

FOREWORD
The Pound Civil Justice Institute’s 22nd annual Forum for State Appellate Court Judges was held on July 26,
2014, in Baltimore, Maryland. As with all of every past Forum, it was both enjoyable and thought-provoking.
In the Forum setting, judges, practicing attorneys, and legal scholars were able to consider the increasingly
important issue of forced arbitration and its impact on Americans’ Constitutional right to trial by jury.
The Pound Civil Justice Institute recognizes that the state courts have the principal role in the
administration of justice in the United States, and that they carry by far the heaviest of our judicial workloads.
We try to support them in their work by offering our annual Forums as a venue where judges, academics,
and practitioners can have a frank, pertinent dialogue in a single day. These discussions sometimes lead to
consensus, but even when they do not, the exercise is always fruitful. Our attendees always bring with them
different points of view, and we make concerted efforts to include panelists with outlooks that differ from those
of most of the Institute’s Fellows. That diversity of viewpoints always emerges in our Forum reports.
Our Forums for State Appellate Court Judges have been devoted to many cutting-edge topics, ranging
from the court funding crisis, to the decline of jury trial, to separation of powers and secrecy in litigation.
We are proud of our Forums, and are gratified by the increasing attendance we have experienced since their
inception, as well as by the very positive comments we have received from judges who have attended in
the past. A full listing of the prior Forums and their content is provided in an appendix to this report, and
their reports and papers—along with most of our other publications—are available free on our website,
www.poundinstitute.org.
The Pound Institute is indebted to many people for the success of the 2014 Forum for State Appellate
Court Judges:
• Professor Myriam Gilles and Professor Richard Frankel, who wrote academic the papers that framed our
discussions;
• the Honorable Mary Ellen Barbera, Chief Judge of the Court of Appeals of Maryland, for welcoming us to
Baltimore;
• our lunch speaker, Professor Jeff Sovern of St. John’s University School of Law, for briefing us on a new
and important study of consumers’ understanding of mandatory arbitration provisions in contracts;
• our panelists—Professor Andrew Popper, the Honorable Janice Holder, Archis Parasharami, Alan Gilbert,
the Honorable Marilyn Kelly, the Honorable Simeon Acoba (ret.), Michael Weston, and Leslie Bailey;
FORCED ARBITRATION AND THE FATE OF THE 7TH AMENDMENT 1
• the moderators of our small-group discussions—David Arbogast, Linda Atkinson, Kathryn Clarke, Mark
Davis, Molly Hoffman, Betty Morgan, Barry Nace, Gale Pearson, Kathleen Flynn Peterson, Ellen Relkin,
and John Vail—for helping us to arrive at the essence of the Forum, which is what experienced state court
judges think about the issues we presented;
• and the Pound Civil Justice Institute’s efficient and dedicated staff—Mary Collishaw, our executive director,
and Jim Rooks, our consultant and Forum reporter—for their diligence and professionalism in organizing
and administering the 2014 Judges Forum.
It goes without saying that we appreciated the attendance of the distinguished group of judges who took
time from their busy schedules so that we might all learn from each other. To echo the sentiments of Professor
Popper, you judges are “the real architects of civil justice.” We hope you enjoy reviewing this report of the
Forum, and that you will find it useful to you in your future consideration of matters relating to arbitration and
trial by jury.
Herman J. Russomanno
President, Pound Civil Justice Institute, 2013-15
2 FORCED ARBITRATION AND THE FATE OF THE 7TH AMENDMENT