If You (Re)Build It, They will Come: Contracts to Remake the Rules of Litigation in Arbitration's Image‪.‬

INTRODUCTION The Seventh Amendment to the U.S. Constitution provides that "[i]n Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved...." (1) Rule 38 of the Federal Rules of Civil Procedure provides that "[t]he right of trial by jury as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States shall be preserved to the parties inviolate." (2) The Supreme Court has described the right to trial by jury in a civil action as a "basic and fundamental" right that is "sacred to the citizen" and therefore "should be jealously guarded by the court." (3) But parties to a contract may agree that, in the event a dispute arises, they waive their right to a jury. If this dispute resolution right--which is fundamental, constitutional, and set forth in the Federal Rules of Civil Procedure--may be used as a bargaining chip, are there any limits on parties' ability to modify the rules of public dispute resolution in their ex ante contract?