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March 24, 2005
Losing Access to Courts
The right to a trial by jury is the cornerstone of our Constitution.
Except if a corporation doesn't like juries.
Then it can impose an "arbitration agreement" requiring that if the company violates discrimination or wage or other laws, the complaint will be heard by a private arbitrator rather than a court of law.
In California, the law prohibits arbitration clauses where the process is "unconscionable", meaning there was no room for negotiation on an unfair clause. But here's the catch-22: even if the arbitration clause was imposed in an "unconscionable" manner, it's the arbitrator, not the courts, that get to decide if the arbitrator shouldn't be hearing the case, or so the Ninth Circuit just decided.
Of course, arbitrators have a financial self-interest in finding that they have the right to hear the case, since they'd be giving up a paycheck if they find the arbitration clause illegal. So how often do you think they'll find an arbitration clause illegal?
Posted by Nathan at March 24, 2005 08:29 AM
