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Abstract

Most courts require that for an individual to waive her Seventh Amendment right to trial by jury, she must knowingly and voluntarily waive that right. This heightened requirement for waiver exists because the United States Supreme Court has found that "[tlhe trial by jury is justly dear to the American people... and every encroachment upon it has been watched with great jealousy." Seemingly this standard should apply to mandatory employment arbitration agreements, as shifting the venue from the courts to the arbitral tribunal implicitly means waiving the right to trial by jury. However, because the Federal Arbitration Act ("FAA") requires that enforcement of arbitration agreements rests on contract standards of consent, most courts apply a less employee-protective test by simply determining whether there were manifestations of mutual assent to the arbitration agreement. The Sixth Circuit Court of Appeals, to the benefit of employees, does apply a "knowing and voluntary" test, as demonstrated by its decision in Seawright v. American General Financial Services ("AGF"), but the definitional factors it examines seem to lack the comprehensiveness of tests outlined by various commentators, and it does not adequately address the "voluntariness" aspect of the standard.

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