Chairman Johnson's Opening Remarks at Markup of FAIR Act of 2021
WASHINGTON, D.C. — Today, the bipartisan Forced Arbitration Injustice Repeal (FAIR) Act — H.R. 963 — that re-establishes everyday Americans' 7th Amendment right to seek justice and accountability through the court system — was marked up in the House Judiciary Committee. The following are opening remarks from Courts, Intellectual Property and the Internet Subcommittee Chairman Congressman Hank Johnson — the original sponsor of the FAIR Act.
Thank you, Mr. Chairman, for holding this markup on the Fair Act, and I thank my 200-plus colleagues who are signed as cosponsors on this important bill. And a special thank you to the gentleman from Florida, Mr. Gaetz, for joining in this fight.
Colleagues, there have been few times in American history when we in Congress have been as divided and polarized as we are now. But there is one thing that we all agree upon: That is, the Constitution of the United States of America is one of the greatest documents ever written in the history of humankind. For 234 years it has withstood the test of time. For 234 years, the Bill of Rights, Amendments 1-10 of the Constitution, have protected individual liberties and freedom. The first, second, fourth, fifth and tenth amendments have often captured our attention, but the other five amendments are no less significant in the rights that they protect. The Sixth Amendment guarantees the right to a speedy and public trial by a fair and impartial jury in criminal proceedings, and the Seventh Amendment guarantees the right to a trial by jury in civil cases where "the value in controversy shall exceed twenty dollars…".
The Sixth and Seventh Amendments guarantee access to justice in criminal and civil proceedings, and while the 6th Amendment has held up well over the course of history, the 7th Amendment right is no longer viable because of US Supreme Court decisions validating the use of forced arbitration clauses in agreements between wealthy and powerful business interests, and consumers and workers. Lawsuits have proven to be a costly annoyance to corporations desiring to go about their business without having the threat of lawsuits seeking to hold them accountable when their conduct is wrongful.
That is why they came up with the idea of hiding forced arbitration clauses in consumer and employment agreements. Nowadays, when a consumer goes in to buy a car, purchase a home, rent an apartment, open a bank account, open a credit card, make a purchase online, get a cell phone, obtain health insurance, put relatives in the nursing home, and even you want to start work on a new job; in just about every contract between consumers and corporations, the little guy is forced to sign away their 7th Amendment right to a trial by jury. Then, when the consumer or worker gets treated badly and they want to sue, they discover that they can't do so because of the "take it or leave it" terms of service they agreed to, which forces their dispute into the private, for profit, dispute resolution process known as arbitration. Forced arbitration was created as a for profit business, by business, for business. And it works well for big business, because studies prove that in forced arbitration, the business just about always wins.
Over the past several decades, forced arbitration clauses in consumer and employment agreements have become so widespread that you can't purchase anything or even take a job without being forced to agree to forced arbitration. It's always a "take it or leave it" situation" for the little guy.
Unlike the civil justice system, which has developed through centuries of statutes and case law, the forced arbitration process is not required to be based on the rule of law. The procedural rules and substantive law that a judge would apply in a court of law, are not mandatory and often don't apply in an arbitration proceeding. In fact, instead of having a neutral and detached judge presiding over the case, an arbitrator is not even required to be a lawyer. Testimony is not required to be under oath subject to the penalty of perjury, and there is no requirement that a court reporter take down the proceedings, so there is no right to a meaningful appeal on the merits when a party disagrees with the decision of the arbitrator. Moreover, arbitration is far from a public process, with proceedings being held in privacy at secret locations. Forced arbitration fails to provide procedural guarantees of fairness and due process that are the hallmarks of courts of law and enables corporations to stack the deck against the little guy. The use of pre-dispute forced arbitration clauses against consumers and workers undermines public confidence in and respect for the concept of justice in America.
The solution is to pass the FAIR Act, to restore the 7th Amendment right to trial by jury in civil cases as the framers of our Constitution intended. I ask for your support for this legislation and I yield back.
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