[This is an edited version of a comment I posted on a Wall Street Journal story:]
Imagine that a restaurant owners’ association started lobbying for a new law. Under the proposed law, restaurants would enjoy a new legal right.
The new right would be this: Any restaurant, by filing a request and paying a nominal fee, could get the government to compel citizens to report for dish-washing duty.
Most people would say that the restaurant owners were seriously overreaching — dish-washing is a normal business expense; hire your own damned dishwashers, thank you very much.
Yet that’s pretty much what happens in every contract dispute that goes to trial by jury: By law, the parties to many contracts have the right to demand that citizens be ordered to report for jury duty, where they’ll be forced to listen to the parties’ dispute and decide who wins. (OK, the analogy is a bit over-simplified, but the basic point is accurate.)
Conceivably there might be public emergencies in which such a law would be justifiable. But it shouldn’t be allowed to be a routine business practice. Contract disputes are a normal, expected thing in business. Parties to contracts should have to plan for that, and make their own arrangements to have their contract disputes heard and decided — arrangements such as non-jury trials or even private arbitration — just as restaurants have to hire dishwashers.
Don’t get me wrong; there are times when jury service is a critical public duty. In criminal cases, jury service is something we owe each other as a check against prosecutorial excess. In personal-injury and other tort cases, jury service is the price we pay for giving grievants an alternative to violence as a means of redress. But contract cases are another matter.