The Declaration of Independence refers to the rights to life, liberty, and the pursuit of happiness as inalienable. (1) Some rights, however, are alienable. Consent is a common means of alienating, or "waiving," (2) one's rights. In criminal procedure, for example, consent to search is a means of waiving Fourth Amendment rights. (3) In family law, consent to adoption is a means of waiving parental rights. (4) And in tort law, consent to bodily touching is a means of waiving rights against battery?
While consent is a means of waiving rights in many areas of law, these areas vary in their standards of consent. For example, the standards of consent governing jury-waiver clauses tend to be higher than those governing contracts generally. (6) This point is the basis for an argument that the Federal Arbitration Act (FAA) (7) is unconstitutional. The FAA requires courts to apply contract-law standards of consent to arbitration agreements, (8) but certain commentators argue that courts are instead constitutionally required to apply the higher standards of consent governing jury-waiver clauses. (9) This Article responds to these commentators and argues that the FAA's contract-law standards of consent are constitutional.
Part II of the Article briefly surveys the jury-trial right and the many ways in which it can be waived, including by consent to a contract containing either an arbitration clause or a jury-waiver clause. Part III contrasts the contract-law standards of consent in arbitration law with the knowing-consent standards governing jury-waiver clauses. Part IV focuses on the FAA and argues that it cannot plausibly be interpreted to require knowing consent or any other standards of consent except those used by contract law.
Part V responds to and rejects commentators' arguments that courts are constitutionally required to apply a knowing-consent standard to arbitration agreements. Part V first explains that knowing-consent standards for waivers of constitutional rights are common in the criminal context but less prevalent in the civil context. It then discusses several examples of courts' using contract-law standards of consent for civil waivers of constitutional rights and suggests that the case law on jury-waiver clauses is an aberration because it generally uses a knowing-consent standard. Part VI suggests that the doctrinal foundations for this aberration are weak because the courts only recently adopted a knowing-consent standard for jury-waiver clauses and the Supreme Court has never done so. In sum, Part VI raises doubts about whether a knowing-consent standard is even constitutionally required for jury-waiver clauses, let alone for all civil waivers of constitutional rights.
Part VII concludes that, if the Supreme Court were to harmonize the law on civil waivers of constitutional rights by requiring that the same standard of consent be used regardless of the type of waiver or the right waived, it would likely end the knowing-consent requirement in the law governing jury-waiver clauses rather than add this requirement to arbitration and other areas of law--and rightly so. (10)
THE RIGHT TO JURY TRIAL AND CONSENT TO WAIVE IT
The Seventh Amendment 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."" The Amendment applies only in federal court, (12) but nearly all state constitutions contain a provision that similarly protects the right to trial by jury. (13) Courts generally interpret federal and state constitutional provisions to confer a jury-trial right only in cases arising at law, as opposed to cases in equity. (14) In addition to constitutional jury-right provisions, some federal and state statutes also grant jury-trial rights. (15) But there are generally no jury-trial rights in adjudications outside of courts, such as those before administrative agencies or arbitrators. …