The Pound Civil Justice Institute — a legal, educational “think tank” that works to strengthen the civil justice system — has just announced the release of its latest publication, Forced Arbitration and the Fate of the 7th Amendment:  The Core of America’s Legal System at Stake? This 172-page publication reports on Pound’s 22nd annual Forum for State Appellate Court Judges, attended by 144 state appellate judges from 36 states, held on July 26, 2014 in Baltimore.  The report contains the two academic papers prepared for the Forum (“The Demise of Deterrence: Mandatory Arbitration and the ‘Litigation Reform’ Movement” by Prof. Myriam Gilles of Cardozo Law School, and “State Court Authority Regarding Forced Arbitration After Concepcion” by Prof. Richard Frankel of Drexel University School of Law), commentary by panels of legal experts, and frank discussion among the attending judges.  Also included is a report by Prof. Jeff Sovern of St. John’s University School of Law on his empirical study on consumer understanding of arbitration provisions in contracts.   2014PoundReport

The Forum report shows a real awakening among state court judges on the issue of forced arbitration, as relayed in the many pages of comments from judges during their small-group discussions.  Judges’ comments were obtained under the promise of anonymity, which encouraged frank and open dialogue.  For example:

 

·         “I’ve been a big proponent of arbitration throughout my career, and I’m beginning to think that may have been wrong-headed. You listen to the discussions these days about whether we are going to lose the right to trial by jury because we won’t try jury cases anymore. That’s of some concern.”

·         “Before I became a judge, I was put on a committee with judges and lawyers.  We actually pushed arbitration, mandatory arbitration, or mediation in all forms as available to litigants.  We actually pushed this.  Now I have a completely different point of view about what might have been behind that push.  If you read the decisions, you can’t help but see the thin premises about why the Federal Arbitration Act would apply.”

 

·         “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.”

 

·         “There was this push by the people who were afraid of lawsuits . . . First, they tried to change the law. Then they tried to change the courts. Then they pushed for arbitration. Yes, my view is that it is directly part of the whole scenario by big business and big money to change the whole system. I think we are losing. And I think trial judges are losing.”

 

You may download the report for free via Pound’s website at http://poundinstitute.org.  You may also purchase hard copies at the website.  If there are judges or policy-makers whom you feel should receive the report, please contact Pound’s Executive Director, Mary Collishaw, at 202-944-2841 or mary.collishaw@poundinstitute.org. The Pound Institute is a membership organization.  If you are interested in becoming a Pound Fellow and advancing the Institute’s work, please contact Ms. Collishaw, or visit Pound’s website to learn more about its activities.  The Pound Institute welcomes your membership, as well as direct donations for its Judges Forums and other programs.  All Pound Fellows and Forum donors are listed in the materials distributed to judges attending the Forums.​

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