If You (Re)build It, They Will Come: Contracts to Remake the Rules of Litigation in Arbitration's Image

Article excerpt

INTRODUCTION

  I. THE ARBITRATION PROBLEM
     A. Arbitration Is Not (Necessarily) Faster
        than Litigation
     B. Arbitration Is Not Cheaper than Litigation
     C. Arbitration Is More Confidential than
        Litigation
     D. Arbitration Is Riskier and Less
        Predictable than Litigation
     E. Courts Are Refusing to Enforce
        Arbitration Agreements
     F. Contractually-Modified Litigation Offers
        a Superior Alternative to Arbitration

 II. THE "NEW" FREEDOM OF CONTRACT: EX ANTE
     CONTRACTS TO MODIFY THE RULES OF
     LITIGATION ARE PRESUMPTIVELY ENFORCEABLE

III. COURTS HAVE ENFORCED EX ANTE CONTRACTS
     THAT MODIFY A BROAD ARRAY OF LITIGATION
     RIGHTS AND RULES
     A. Constitutional "Due Process" Rights
     B. Seventh Amendment Right to Trial by Jury
     C. Rules of Evidence
     D. Rules of Civil Procedure
     E. Other Public Dispute Resolution Rights
     F. Lessons from Arbitration

  IV. THE RELATIONSHIP BETWEEN THE LITIGATION
  PROCESS AND THE POWER TO MODIFY IT
     A. Litigation Rules Are Commodities that
        Are Subject to Negotiation and Exchange
        Like Other Contractual Provisions
     B. The Parties Own Their Dispute, and the
        "Rules" of Litigation Are Default Rules

  V. LIMITS ON THE POWER TO MODIFY THE RULES
     OF LITIGATION
     A. Overriding Procedural Considerations
     B. Courts' Inherent Power to Control the
        Litigation Process
     C. The Parties May Waive Only Their Own
        Litigation Rights
     D. Waiver of Constitutional Rights May Be
        Subject to Stricter Scrutiny: The "Knowing,
        Voluntary, and Intelligent Waiver" Standard
     E. Conclusions

 VI. MODIFIED LITIGATION UNDER THE NEW
     FREEDOM OF CONTRACT
     A. Maximizing the Chances for Specific
        Enforcement
     B. What Might Modified Litigation Look Like?

CONCLUSION

INTRODUCTION

The Seventh Amendment to the U.S. Constitution provides that "[i]n Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved...." (1) Rule 38 of the Federal Rules of Civil Procedure provides that "[t]he right of trial by jury as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States shall be preserved to the parties inviolate." (2) The Supreme Court has described the right to trial by jury in a civil action as a "basic and fundamental" right that is "sacred to the citizen" and therefore "should be jealously guarded by the court." (3) But parties to a contract may agree that, in the event a dispute arises, they waive their right to a jury. If this dispute resolution right--which is fundamental, constitutional, and set forth in the Federal Rules of Civil Procedure--may be used as a bargaining chip, are there any limits on parties' ability to modify the rules of public dispute resolution in their ex ante contract?

In this Article, I examine the limits on parties' ability to design and implement through contractual agreements their own set of public dispute resolution rules. I do not, however, focus on the usual method--opting-out of the public courts in favor of private arbitration. Instead, I consider parties' ability to "opt-in" and choose the public courts as the forum for dispute resolution, yet waive, modify, and displace the "normal" litigation rules. (4)

Others have written about the general concept of agreements that modify certain litigation rules. These commentators criticize the growing body of law that recognizes the ability of private parties to modify the rules of public dispute resolution. For example, Professor David Taylor and Sara Cliffe argue that courts have improperly elevated ex ante contracts to "a status of 'super contract,' a status that transcends traditional rules of contract law and results in near-automatic enforcement by means of specific performance. …