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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 disagreements must be settled before such waivers can be used appropriately and effectively.

This Article resolves the burden of proof question by arguing that several factors support assigning the burden of proof to the party seeking enforcement of the waiver, which in employer-employee disputes will usually be the employer. Allocating the proof burden in this way will standardize judicial treatment of pre-dispute jurywaivers, allowing them to be used optimally to manage the risks of dispute resolution.

Part II of this Article assesses the use of pre-dispute jury waivers in the employment context and explains their appeal. Part III analyzes the various ways that federal courts have treated pre-dispute jury waivers and notes specific inconsistencies in the treatment ofsuch waivers in several recent federal employment cases. Part IV argues that in the employment context, public policy considerations, and convenience and fairness concerns, all call for assigning the burden of proof to the party seeking enforcement of the waiver.