Arbitration Clauses, Jury-Waiver Clauses and other Contractual Waivers of Constitutional Rights

Ware, Stephen J.

doi:10.2139/ssrn.337121

Cited by 2 publications

(2 citation statements)

References 9 publications

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“…Plaintiffs may be excluded from using litigation mechanisms that they wanted to use after the conflict arose, or may be confronted with an arbitrator who depends on a constant stream of cases from the defendant. These worries translate into an extensive debate, continuing before the courts, on whether arbitration clauses in adhesion contracts should be allowed or not (Ware 2004;Sternlight 2005;Brunet, Speidel et al 2006;Sternlight 2007).…”

Section: A Market Analysismentioning

confidence: 99%

Growing Justice: Justice Policies and Transaction Costs

Barendrecht

2009

SSRN Journal

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This paper reviews the literature on policies aiming to improve the rule of law and the operation of a legal system. It takes a bottom up perspective of clients seeking access to justice and uses transaction costs on the market for justice as a criterion to evaluate justice policies. Most justice is created through 'justice transactions,' including informal help from friends, legal advice, information about law, ADR services, other forms of informal justice, and adjudication. Such transactions are seriously hampered by three major transaction cost problems, however.Justice policies include codification, setting up courts and reforming them, financing of courts, legal aid, ADR, developing rules of procedure, and regulation of the legal profession. The transaction cost perspective explains why many traditional justice policies do a poor job to increase access to justice or to diminish the costs of civil justice. More promising justice policies enable justice to emerge bottom up, in the interactions between clients and providers of justice services (microjustice, legal empowerment). These policies focus on the information needs of disputants, low cost default procedures, choice for plaintiffs, accountability towards clients, gradual, needs-based formalization of legal relationships, and strengthening informal compliance mechanisms.1 Helpful comments on an earlier version were provided by

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Section: A Market Analysismentioning

confidence: 99%

Growing Justice: Justice Policies and Transaction Costs

Barendrecht

2009

SSRN Journal

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“…Specific studies on fairness in arbitration also do not focus on consumer perception. The extant body of literature argues for and against arbitration from different angles most notably from lack of true consent (Schwartz, 1997), unconstitutionality (Sternlight, 1997;Resnik 2014), freedom of contract (Ware, 2004), law and economics (Drahozal and Hylton, 2003;Marrow, 2009) and unconscionability (Schmitz, 2006;Brunet et al, 2006). Outcome fairness focuses on win rates and pay-outs (Schwartz, 2009).…”

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confidence: 99%

Justice in arbitration: the consumer perspective

Ghodoosi

Sharif

2021

IJCMA

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Purpose Arbitration – a binding private third-party adjudication – has been the primary legal way for resolution of consumer disputes. Consumers, however, rarely use arbitration to resolve their disputes while evidence suggests that their disputes remain unresolved. Contrary to the current prevailing emphasis on who is winning in arbitration, this study aims to establish that consumers believe that the court is more just than arbitration, regardless of the outcome. This study further establishes that consumers’ perceived poor legitimacy and lack of familiarity, not cost calculation, are what drive their justice perception. Design/methodology/approach In three experimental studies, participants were presented with scenarios in which they were to envision themselves amid a consumer dispute. The scenarios were followed by survey questions that examined individuals’ perceptions of justice. Three mediating variables of legitimacy, cost and familiarity were also examined. Findings The results suggest that consumers hold a high perception of justice for court as opposed to arbitration. Even though a favorable outcome increases consumers’ perception of justice, the results suggest that consumers find courts to be fairer regardless of the outcome. Familiarity and legitimacy mediate this relationship, not cost. Originality/value Current research does not provide an adequate explanation for consumers’ underutilization of arbitration nor does it focus on correct factors. Studies in psychology and law primarily focus on ex post feelings of individuals after dispute resolution, ex post favorable outcomes and ex ante cost–benefit analysis. To the best of the authors’ knowledge, the present study for the first time analyzes ex ante consumer perception of justice.

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Arbitration Clauses, Jury-Waiver Clauses and other Contractual Waivers of Constitutional Rights

Cited by 2 publications

References 9 publications

Growing Justice: Justice Policies and Transaction Costs

Growing Justice: Justice Policies and Transaction Costs

Justice in arbitration: the consumer perspective

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