Access to Justice

  • September 17, 2015
    Guest Post

    by Gene R. Nichol, the Boyd Tinsley Distinguished Professor, University of North Carolina School of Law

    *This post is part of ACSblog’s 2015 Constitution Day Symposium.

    God knows there’s much to celebrate on Constitution day. That’s especially true in a year in which the Supreme Court has chosen to recognize, even if belatedly, the full humanity of lesbians and gay men. Some steps forward are not timid stumbles.

    Still, on September 17 we usually hear little about the greatest defect of our constitutionalism – the tragic and delegitimizing reality that millions of Americans are priced out of the effective use of the civil justice system because they can’t pay the fare.

    We carve “equal justice under law” on our courthouse walls. We swear allegiance to it every day. For a half-century, we’ve announced as a fundamental principal of our constitutional law that “there can be no justice where the kind of trial a person gets depends on the amount of money he has.” But what we do has nothing in common with what we say.

    The World Justice Project’s Rule of Law rankings recently listed the United States 66th of the 99 nations studied in access to justice. Each year, the report places us at or near the very bottom of the world’s wealthy nations. The rapporteurs explained, yet again, that socio-economic status matters far more in the U.S. than in other advanced nations. We talk the most about a vaunted commitment to equal justice. Talk the most and do the least.

    New York’s recent study confirms, yet again, national findings that less than twenty percent of the civil legal needs of the poor and near-poor are met. In my own state, legal services providers, unable meet the crushing demand, report that thousands of our citizens lose their homes, their jobs, their unemployment compensation, their health care benefits, and their access to protective orders because they don’t have lawyers. What passes for civil justice among the nation’s poor is astonishing.

  • September 3, 2015
    Guest Post

    by Leslie Brueckner, Senior Attorney, Public Justice

    *This piece first appeared at Public Justice Blog

    The U.S. Supreme Court is poised to decide an issue of huge importance to everyone who cares about access to justice. The question, in Campbell-Ewald v. Gomez, is whether corporate defendants in class actions are entitled to bribe class representatives to abandon the rest of the potential class members. 

    Yes, you read that right. According to the corporation who was sued, it should be allowed to cancel out a class action against it simply by offering to settle the named plaintiff’s individual claims. Under the defendant’s view of the law, corporations accused of ripping off millions of people could avoid accountability by repeatedly picking off the few named plaintiffs who are willing to step forward. Campbell-Ewald has even gone so far as to argue that class representatives are bound by such offers, accepted or not, even if it effectively denies all other class members the ability to obtain any relief at all.

    The craziest part about the theory they’ve put forth is that it turns the whole notion of adequacy of representation 180 degrees. As we explained in an amici brief we just filed with the Court (along with the AARP), one of the most basic rules of class actions is that class representatives are supposed to represent the others impacted by the wrongdoing. Not only is this required by Rule 23 (the federal class action rule), it’s also required by the U.S. Constitution (due process, anyone?). This means not just that the class representatives are supposed to be competent, they are also supposed to be loyal to the rest of the class members. And that means the class representatives are not supposed to file potential class actions just to make money for themselves, they are supposed to be standing up for everyone in the class. 

  • July 30, 2015

    by Nanya Springer

    Many people assume that an inevitable consequence of suing someone – or being sued – is a day in court.  After all, a trial by jury in most civil cases is a constitutional right under the Seventh Amendment.  However, fewer and fewer civil suits are resulting in jury trials—less than one percent of federal civil cases since 2005, down from 5.5 percent in 1962.  The trend continues at the state level, where courts have seen a 50 percent drop in jury and bench trials between 1992 and 2005.

    In order to study why the civil jury trial is disappearing, plaintiff’s attorney Stephen Susman, a member of the ACS Board of Advisors and former member of the ACS Board of Directors, has partnered with the New York University School of Law to found the Civil Jury Project.  Susman, who provided the initial funding for the project and will serve as its executive director, says, “The Project will examine why jury trials in civil cases are rapidly vanishing, whether trial by jury still serves a useful purpose in our complex society, and if so what – if anything – can be done to reverse the trend.”

    The first of its kind in the nation, the project was conceived because of Susman’s longstanding commitment to the jury trial right.  In light of the proliferation of binding arbitration clauses and other barriers to the courthouse, Susman has repeatedly expressed concerns about the “privatization of the justice system.”  While serving as executive director of the Civil Jury Project, Susman will continue practicing law full time and teaching law students how to try cases inexpensively—a vital skill for trial lawyers, considering todays’ skyrocketing litigation costs.

    The Project’s inaugural conference will take place on Friday, September 11 in New York. For more information, visit here.

  • July 24, 2015
    Video Interview

    by Nanya Springer

    Some talk this week centered on the issue of reforming the U.S. Supreme Court, with one irresponsible proposal gaining moderate attention, but Erwin Chemerinsky has been talking about fixing the Supreme Court for years.  In an interview with ACSblog, Chemerinsky ‒ the Distinguished Professor of Law and Raymond Pryke Professor of First Amendment Law at the University of California, Irvine School of Law ‒ describes the Supreme Court’s greatest failures and proposes responsible solutions.

    Chemerinsky recalls the Lochner Era ‒ a period during which the high court struck down more than 200 laws enacted to protect consumers and employees, using the rationale that such laws interfere with freedom of contract. While the Lochner Era ended nearly a century ago, Chemerinsky explains that today’s Roberts Court “is the most pro-business Supreme Court that we’ve had since the mid-1930s.”

    This claim, as Chemerinsky notes, is backed up by empirical studies. From restricting the availability of class action suits and favoring binding arbitration to weakening the influence of unions, the Roberts Court has consistently sided with corporations over consumers and employees—all while refusing to recognize poverty as a suspect classification and determining that education is not a fundamental right.

    Chemerinsky offers reasonable proposals, such as imposing 18-year nonrenewable term limits, allowing cameras inside the Court and insisting that the justices conform to the same ethical standards, particularly with regard to recusal, as judges on other courts.

    Watch the full interview here or below.

  • June 19, 2015

    by Nanya Springer

    For those who attended, the 2015 ACS National Convention was not only an opportunity to catch up with old friends, make new connections, and obtain CLE credits; it was also a time to reflect upon the important work that attorneys do every day and gain inspiration for the road ahead.  Speakers from across the country and from diverse professional backgrounds delved into the issues of the day, including voting rights, women’s access to reproductive health care, LGBT rights and marriage equality, access to counsel, and more.  Here are some highlights with links to high-quality video for those who missed the live event.

    Stephen Bright, president and senior counsel at the Southern Center for Human Rights, received a stirring round of applause when he encouraged students and young lawyers to represent unpopular clients, saying “we need to see the kinds of injustices that got . . . people where they are.” In attendance with Mr. Bright were Theo Shaw, one of the exonerated “Jena 6” who is now on his way to law school on a full scholarship, and Jarrett Adams, an exoneree who graduated from law school and will soon begin clerking for the court that exonerated him.

    Wendy Davis, women’s rights crusader and a former state Senator from Texas, discussed how rampant voter suppression has led to bad policies in her state, particularly concerning access to reproductive health care. “Women who lack the means to manage their fertility lack the means to manage their lives,” she declared. “It is just that simple.”

    Former U.S. Attorney General Eric Holder called for automatic registration of all eligible voters in the U.S., stating that “the ability to vote is a right, it is not a privilege.” He decried efforts to make voting less accessible, explaining that in-person voting fraud is very rare and no such widespread schemes have been detected.

    U.S. Representative Hakeem Jeffries discussed the ongoing need to address faulty police practices, including so-called “taxation by citation,” “stop and frisk,” and “broken windows” tactics that disproportionately target low-income people and communities of color.

    U.S. Supreme Court Justice Ruth Bader Ginsburg drew laughs and applause during her conversation with California Supreme Court Justice Goodwin Liu. Speaking about her groundbreaking career, she said “I don’t think the meaning of feminism has changed,” it has always meant “girls should have the same opportunity to dream, aspire, achieve . . . as boys.” It’s about “women and men working together to help make society a better place.”