The “Vanishing Trial”: Arbitrating Wrongful Death

Within the past four decades, private arbitration has spread apace across the American legal landscape. The “mass production” of arbitration clauses has pervaded modern business life, relegating a multitude of legal doctrines from the public courthouse into the private realm. The results have been both acute and invidious. Modern judicial preferences for arbitration have given way to enforcement in areas of the formerly unenforceable. Courts are now compelling new classes of claims, previously thought to be beyond the pale of any arbitration agreement. The latest target in this expedition is the wrongful death action, with courts now shifting wrongful death litigants into private arbitration when they never agreed to arbitrate their disputes in the first place. The recent paradigm shift into wrongful death arbitration raises a complex blend of conceptual, practical, normative, and doctrinal problems. Under modern judicial preferences for arbitration, the problems that inhere within wrongful death arbitration have remained largely hidden. In this article, we expose these problems and develop a more nuanced and coherent rule of analysis that comprehends the history and purpose behind these two legal doctrines: wrongful death liability and arbitration. First, we show that courts compelling arbitration in this area distort the very rights wrongful death liability historically sought to defend—including the property rights of family members who depended upon the decedent for economic support. Next, we explain that, by denying family members access to public tribunals and punitive damage awards, courts compelling wrongful death arbitration erode the basic deterrence function of wrongful death liability. In reaching our conclusion, we urge a bright-line rule that rejects wrongful death arbitration as fundamentally inconsistent with the historical intent and purpose behind both wrongful death liability and arbitration