Arguing Class Actions is a monthly column for the National Law Journal.

In the last decade, the U.S. Supreme Court came down with a number of opinions creating law out of whole cloth that when corporations insert mandatory, binding arbitration clauses into any type of consumer agreement—even if a consumer has no power to negotiate and no time to read the agreement—that consumer’s right to a trial by jury evaporates. Some of the same lawyers who worked to create this line of cases from the Supreme Court also have a history of zealous advocacy for the gun lobby. But the hypocrisy is laughable. How can the same people argue that an individual’s Second Amendment right is absolute, while advocating that the Seventh Amendment’s right to a trial by jury—which “shall be preserved” if “the value in controversy exceed[s] twenty dollars”—is waivable by unconscionable agreements?

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