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Assigning The Burden Of Proof In Contractual Jury Waiver Challenges: How Valuable Is Your Right To A Jury Trial?, Chester Chuang

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Two state supreme courts, California and Georgia, have ruled that pre-dispute contractual jury waivers are not enforceable. Those jurisdictions that permit such waivers use a wide array of “safeguards not typical of commercial law” to protect the constitutional right to jury trial. The multiple safeguards used by courts, and the different ways of applying them led the California Supreme Court to note “the difficulties experienced in other jurisdictions [with respect to pre-dispute jury waivers], where disagreements persist concerning such matters as allocation of the burden of proof when a party resists enforcement of a contractual waiver of jury trial.” These …