38 U.S.F. L. Rev. 17 (2003-2004)
The Rise and Spread of Mandatory Arbitration as a Substitute for the Jury Trial

handle is hein.journals/usflr38 and id is 27 raw text is: Articles

The Rise and Spread of Mandatory
Arbitration as a Substitute for the
Jury Trial
By JEAN R. STERNLIGHT*
THE CVILJURY trial is fast disappearing from our legal landscape, '
and one important reason for its disappearance is the rapid growth of
mandatory arbitration.2 However, with few exceptions, lawyers, courts,
and commentators have failed to adequately consider constitutional
rights to a jury trial in determining the validity of arbitration clauses.
*  Saltman Professor of Law, University of Nevada, Boyd School of Law; and
Director, Saltman Center for Conflict Resolution. The author commenced this project
while still a professor at the University of Missouri-Columbia, and expresses her gratitude
for the support of that institution, as well as for the support of her current employer,
UNLV. The author also thanks the Roscoe Pound Institute. She presented an earlier
version of this paper to a conference of state court judges with the support of that
organization. Finally, the author thanks her research assistants at both schools: Ann Casey,
Mark Lyons, and Patti Ross.
1. Federal court statistics for 2000 show just 1.21% of cases terminating in a jury
verdict. See Theodore Eisenberg & Kevin M. Clermont, Judicial Statistical Inquiry Form, at
http://teddy.law.cornell.edu:8090/questata.htm (last accessed Nov. 5, 2003) (search vari-
ables on file with author). Apparently the same phenomenon is occurring at the state level,
but with more variation. A chart provided by the Court Statistics Project for the National
Center for State Courts shows that among 25 states, the percentage of cases ending injury
trial ranged from Washington's low .35% to Rhode Island's high of 5.5%. The average in
the jurisdictions studied, including 25 states, Puerto Rico, and the District of Columbia,
was that .7% of litigated cases ended in a jury trial. COURT STATISTICS PROJECT, NAT'L CTR.
FOR STATE COURTS, STATE TRIAL & NON-TRIAL DISPOSITIONS (in progress 2003) (on file with
author). See also Chris Guthrie, Procedural Justice Research and the Paucity of Trials, 2002 J.
DISP. RESOL. 127, 129 n.22 (discussing sample of 1992 data showing that approximately 2%
of state court cases ended in jury verdict).
2. See Allstar Homes, Inc. v. Waters, 711 So. 2d 924, 933 (Ala. 1997) (Cook, J., con-
curring) (The reality is that contracts containing [arbitration] provisions appear with in-
creasing frequency in today's marketplace. As a result, consumers find it increasingly
difficult to acquire basic goods and services without forfeiting their rights to try before a
jury the common-law claims that may accrue to them.).

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