Access to Justice

  • June 24, 2014
    Guest Post

    by Arthur Bryant,​ Chairman, Public Justice 

    *This piece is cross-posted on the Public Justice blog.

    Harvard Law School Professor Laurence Tribe, one of America’s preeminent constitutional scholars, says the U.S Supreme Court’s majority is not denying access to justice to consumers, workers, and civil rights plaintiffs just because it is “favorable to big business” and “doubts(s) that civil rights litigation does all that much good.” Tribe says the real reason is more fundamental and disturbing: The Roberts Court is an “anti-court Court.”

    We cannot leave this be. Tribe offers one solution; I have two more.

    Tribe’s new book, Uncertain Justice: The Roberts Court and the Constitution, co-authored with Joshua Matz, reviews and analyzes the Supreme Court’s rulings in several key areas – including equality, health care, campaign finance, freedom of speech, and privacy – since Chief Justice Roberts was appointed in 2005. In 2010, Tribe served as the first “senior counselor on access to justice” in the Obama administration. Perhaps for that reason, the final chapter of the book, “Making Rights Real: Access to Justice,” is the most revealing and instructive.

    Tribe documents the Roberts Court’s “dramatic rewriting” of procedural rules to “unmistakably” favor big business, including an “assault on class actions” and rulings that make it “virtually impossible to escape arbitration agreements.” He writes:

  • June 3, 2014
    Guest Post

    by Arthur Bryant,​ Chairman, Public Justice 

    *This piece is cross-posted on the Public Justice blog.

    The Federal Rules of Civil Procedure matter. They can determine who wins and who loses. And they have been changing in the wrong direction for some time.  Now, proposed rule changes are moving forward and three things are clear: they are much better than what was originally proposed, they are still disturbing, and they demonstrate the critical importance of the Federal Rules process and access to justice advocates’ participation in it.

    Last year, Professor Arthur Miller, perhaps the nation’s premier expert on federal civil procedure, published a landmark article, Simplified Pleading, Meaningful Days in Court, and Trials on the Merits: Reflections on the Deformation of Federal Procedure. Reviewing a wide range of developments, including changes to the Federal Rules, Miller decried the fact that our civil justice system was moving away from both the goal plainly stated in Rule 1 – “the just, speedy, and inexpensive determination of every action and proceeding” – and the “justice-seeking ethos” on which the Federal Rules are based: the belief in “citizen access to the courts and in the resolution of disputes on their merits.”

    He noted that the objective of the discovery process was “obvious and seemingly unobjectionable: The parties should have equal access to the all relevant data; litigation was to be resolved based on the revealed facts, not on who was better at chicanery or at hiding the ball.” 

  • May 7, 2014
    Guest Post
    by Joseph Thai, Watson Centennial Chair in Law and Presidential Professor of Law, University of Oklahoma College of Law
     
    If there is a silver lining to the rushed—and botched—execution of Clayton Lockett last week in Oklahoma, it is the national soul searching that it ignited over the place of the death penalty in our society. The public post-mortem has appropriately spotlighted the means by which the state attempted to kill Lockett—the injection of a secretly procured drug cocktail that failed to put him to death in the “humane” manner intended, but instead caused him to writhe in agony for over half an hour before he died of a traumatic heart attack. But hidden in plain sight was another troubling dimension to the double execution Oklahoma had planned for that night, with the second now on hold. Both condemned men were black.
     
    The mug shots of Lockett and the other condemned prisoner, Charles Warner, splashed across the front pages and screens of news outlets across the nation. They stared out at the viewer, expressionless, but not lifeless, bound to the same fate, and bound by race.
     
    It is no secret that race infects the death penalty. In the landmark case of McCleskey v. Kemp, which involved a challenge to capital punishment in Georgia as racially biased, the Supreme Court in 1987 acknowledged that capital sentencing “appears to correlate with race.” In fact, the correlations drawn by a seminal study of the death penalty in that southern state were stark: among them, a defendant was 4.3 times more likely to draw the death penalty if the crime involved a white victim rather than a black one, and the racial combination most likely to result in the death penalty was a black defendant and white victim. The Court rejected the challenge in a deeply divided 5-4 ruling, accepting that “apparent disparities in sentencing are an inevitable part of our criminal justice system,” but reasoning that “the Constitution does not place totally unrealistic conditions on its use.”
     
  • April 29, 2014

    Earlier this morning, the Supreme Court heard oral argument in two cases which raise the question of whether or not police can search confiscated cellphones of arrestees without a warrant. In both cases, the defendants argued that the information obtained from their cell phones by police was in violation of the Fourth Amendment. NPR’s Nina Totenberg discusses Riley v. California and United States v. Wurie.
     
    Yesterday, the Supreme Court denied cert in Jackson v. Louisiana, a case that examined whether or not a non-unanimous jury verdict violates the Sixth Amendment. At CAC’s Text & History Blog, Brianne Gorod explains why the high court’s failure in taking the case “is not only tragic, it’s inexplicable.”
     
    Yesterday, the U.S. Court of Appeals for the Fifth Circuit heard arguments concerning whether a state law can close the last abortion clinic in Mississippi. Writing for MSNBC, Irin Carmon asserts that “what’s at stake stretches far beyond Mississippi.”
     
    At Just Security, Marty Lederman explains why the Director of National Intelligence James Clapper’s Directive 119, which “prohibits employees of the Intelligence Community from unauthorized ‘contacts’ with the media about intelligence ‘sources’ ” isn’t a “clear-cut matter.”
     
    As the 60th Anniversary of Brown v. Board of Education fast approaches, The NAACP Legal Defense and Educational Fund commemorates the Supreme Court’s landmark decision.  
  • April 24, 2014
    Guest Post

    by Zachary J. Kolodin, 3L, New York University School of Law, Former President, New York University School of Law ACS Student Chapter, ACS Next Generation Leader; and Sarah Molinoff, 2L, New York University School of Law, Co-Legislation Chair, New York University School of Law ACS Student Chapter

    The New York University School of Law ACS Student Chapter broke new ground this year by launching its first annual Legislation Competition. Inspired by the work of American Legislative and Issue Campaign Exchange (ALICE), the NYU ACS Student Chapter partnered with the NYU Journal of Legislation and Public Policy to create a real-life policy problem and asked law students to come up with solutions that could be translated into legislation at the state level. Participants in the competition drafted model state-level bills and wrote policy papers advocating for and explaining their proposed legislation.

    The competition aimed to leverage the immense amount of talent in the student body. The NYU ACS Student Chapter decided that it could have the greatest impact by mobilizing student ideas and energy into creating innovative policy solutions for state legislatures and then marketing those ideas. The competition also generated buzz for ACS on campus while serving as an opportunity to promote legislative and policy work to students. 

    Law students at NYU regularly propose policy ideas in student notes and in classroom policy papers. However, the NYU ACS Student Chapter realized that a lot of intellectual energy was not being used. “We wanted to create a vehicle for students to get their ideas out into world, reshaping policy at the state level,” said David Holmberg, NYU ACS Student Chapter President.