Don't let tort reform, forced arbitration threaten your rights

By Andrew Cochran | Sep 25, 2014

WASHINGTON – Sept. 17 is "Constitution Day" to commemorate the decision on Sept. 17, 1787, of the Constitutional Convention in Philadelphia to approve the U.S. Constitution and send it to the states for ratification.

Some delegates to that convention insisted on amending the Constitution to enunciate and protect individual rights, including the right to a jury trial for civil suits, and the Seventh Amendment was the eventual result. To educate the public on that constitutional right, the Let America Know website and newsletter, initiated several years ago to mount a grassroots campaign to defend Seventh Amendment rights, interviewed me about trends in proposed tort reform legislation in Washington and forced arbitration issues.

I discussed the shift in federal tort reform efforts by the business community from the 30-year effort to impose nationwide limits on damages in civil suits to (a) "Loser Pays" (or "fee-shifting") amendments, especially in bills amending environmental law; and (b) vigorous opposition to any bill to end pre-dispute forced arbitration clauses in consumer contracts.

I addressed the unforeseen consequences of Loser Pays rules, which could include limiting the ability of social conservative groups and small businesses. And forced arbitration clauses are buried in our agreements with our bank, cell phone company, or car dealer, and drafted by the company to dilute our right to hold it accountable.

Forced arbitration clauses drive valid disagreements toward a secret, company-dictated process with no procedural safeguards, no right to appeal and little chance of success by the individual consumer. Americans need more Reality Checks, like one from a Cincinnati TV station about the forced arbitration clauses that the Supreme Court has OK'd to help businesses avoid legal accountability and responsibility.

One special bill introduced in Congress would enable our service members overseas to avoid forced arbitration that could result in judgments against them while they're in the battlefield. The last thing a Marine or Navy Seal waging war on terrorists should worry about is an apartment landlord using a forced arbitration clause to evict the soldier.

The SCRA Rights Protection Act, a bipartisan bill in both houses, would amend the Servicemembers Civil Relief Act of 2003 to enable service members to void such clauses. Sadly, certain elements of the business community are quietly waging a lobbying campaign to kill the bill.

Please contact your Congressman and Senator and urge support of this bill!

We need the right to a jury trial for civil suits holding corporations accountable for their actions. If corporations want to be treated as "persons" under the First Amendment for campaign finance purposes, then they should be subject to a jury of our peers in accordance with the Seventh Amendment, without being "tort reformed" out of court through artificial caps on damages, Loser Pays rules or forced arbitration clauses.

Cochran operates a website called The 7th Amendment Advocate. It’s goal is to educate the public and policymakers on the centuries-long history of the right enunciated in the 7th Amendment to a jury trial for civil suits, the accelerating erosion of our 7th Amendment rights, and current issues illustrating the problem and need for restoration of the Founders’ original intent. It can be found at

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