If You (Re)build It, They Will Come: Contracts to Remake the Rules of Litigation in Arbitration's Image
Noyes, Henry S., Harvard Journal of Law & Public Policy
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
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. …