Can I waive my constitutional rights?

Question

e.g. in the EPL (Eclipse Public License) the last statement reads like this.

Each party waives its rights to a jury trial in any resulting litigation.

Can I waive my fundamental constitutional rights? If that be the case, wouldn't it be possible for a legal entity to coerce or cheat a person into a contract that violates his/her constitutional right/s?

Isn't the law of the land above all (including contracts)?

Can the law through due process come to conclusion that a person be denied his constitutional rights because he signed a contract that was illegal/unconstitutional in the first place?

This is not a duplicate of these questions

1. Can I waive my statutory rights?
2. How can felons be denied Constitutional rights?

Answer 1

Actually, the concept "right" means that it can be waived: you may exercise the right, but do not have to. If it is an obligation, you can't "waive" the obligation; but the right to free speech does not mean that you must speak, and the right to bear arms does not mean that you must bear arms. You may decline to exercise, or waive, a right.

Sternlight 16 Ohio St. J. On Disp. Resol. 669 (2001) in "Mandatory Binding Arbitration and the Demise of the Seventh Amendment Right to a Jury Trial" partially addresses this (the focus though is on binding arbitration). One thing to note is that the Seventh Amendment does not appear to apply to issues in state court (it is a separate and fascinating question to wonder what parts of The Constitution are incorporated against states, and why). All is not lost for the constitutional question, we just need a different constitution.

By the agreement terms, "This Agreement is governed by the laws of the State of New York". Therefore, New York's Constitution (Article 1 Sect 2) is also applicable:

Trial by jury in all cases in which it has heretofore been guaranteed by constitutional provision shall remain inviolate forever; but a jury trial may be waived by the parties in all civil cases in the manner to be prescribed by law.

Thus, the right may be waived. Waiver of a right to jury trial is not the same as waiver of the right to trial: what the agreement says is that litigants would have a civil bench trial, where the judge determines whether there was a breach.

In New York, NY CPLR § 4102 allows parties to waive civil trial by jury (and unlike California), such waiver terms have been upheld, but the courts have recognized that there is a problem, so it's not always obvious whether such waivers in contracts are legal.

Answer 2

Yes, and no.

Contracts exist under the law and to the extent that they breach the law they are invalid. However, a central tenant of contract law is that people should be able to contract to do whatever they want subject to that limitation. All contracts involve the acceptance of obligations which can including waiving rights a person would otherwise have.

In a civil case, the defendant is free to waive their right to a jury and ask for a judge only trial. Therefore this is not against the law. Therefore it is not against the law for the defendant to agree in a contract to waive this right in advance of any actual dispute arising.

As a contrast, however, a contract that purported to exclude the jurisdiction of any court of competent jurisdiction would be void. For example, in a contract between a US person and an Australian person, they can agree that the contract will be subject to US law but they cannot exclude Australian law: the courts in both countries would not countenance that because there are some Australian laws that cannot be excluded by contract (and vice-versa). Similarly, they can call for disputes to be under the non-exclusive jurisdiction of US courts - if an action was brought in an Australian court the court would probably decide that they do not have jurisdiction and tell the plaintiff to take their case to the US. However, if the contract said it was under the exclusive jurisdiction of US courts, the courts in both countries would probably strike it down.