OF WHAT VALUE IS A JURY TODAY? AN UPDATED EMPIRICAL STUDY OF JURY TRIAL WAIVERS IN LARGE CORPORATE CONTRACTS.

This study seeks to evaluate whether a decade of tort reform and Seventh Amendment attacks have eroded corporate confidence sufficiently to prompt a substantial increase in the use of jury waiver and arbitration clauses. In 2006, Eisenberg, et. al examined jury trial waivers in a data set of 2,816 contracts contained as exhibits in Form 8-K filings with the SEC. Those authors found that only about 20% of such contracts contained express waivers of the right to trial by jury, with another 9% implicitly waiving the right by agreeing contractually to arbitrate disputes. In the decade since the study concluded, tort reform advocates have devoted substantial time and resources undermining confidence in the jury trial system. During that same period, mandatory arbitration legislation similarly worked to supplant jury trials. Replicating Miller and Eisenberg's methodology, this study seeks to evaluate the effects of these Seventh Amendment attacks by examining the prevalence of jury waiver and arbitration clauses since the prior study concluded. This study, like its predecessor, studies contracts attached as exhibits to Form 8-K filings. As these are associated with events deemed material to the financial condition of SEC-reporting firms, these contracts were likely carefully negotiated by sophisticated, wellinformed parties. As well, the documents' materiality suggests that they received sufficient scrutiny and attention to be considered inten-tional in every aspect. Such critical documents provide presumptive evidence about the perceived value of the right to trial by jury. By increasing the data set significantly (from 2,816 contracts to 4,011) and focusing on the same type of contracts as examined by the prior study ten years before, this study enables new conclusions to be drawn about the prevalence of express and implied waivers to the right of trial by jury. The results of this study both confirm and conform to the findings of the prior study (with a few notable exceptions deserving of analysis) and notes new trends which question the permanence and persistence of the hypotheses respectively confirmed and denied by the prior study. As the results indicate, despite the increased number of contracts filed, it remained that a minority included an explicit jury waiver (less than 30% as compared to about 20% previously). In 2002, about 9% of the contracts required arbitration or an implied jury waiver; in this study that number had grown to only 13%, despite state and federal legislation and case law favoring arbitration. To better understand the issue, this study explored the two factors which appear mostly likely to determine the prevalence of jury waiver or arbitration clauses in studied contracts: (1) the type of contract; and (2) the degree of standardization of that contract. For example, nearly 50% of securities purchase contracts contain explicit jury waivers as compared to only 12.5% of settlement agreements. Results revealed increased standardization in the contracts was strongly associated with use of explicit jury waivers. Ultimately, this study reinforces the conclusions of the prior study: despite widespread media coverage and lay perception that juries are not competent to decide complex business disputes, sophisticated corporate actors perceive that juries add value to dispute resolution even in complex commercial settings. [ABSTRACT FROM AUTHOR]