Access to Justice

  • January 27, 2015

    by Nanya Springer

    The Constitutional Accountability Center recently released the fifth installment of its year-long series, “Roberts at 10,” in which Brianne Gorod details the ways Chief Justice John Roberts’ voting record has undermined the public’s access to the courts.  She points out that Roberts has consistently taken positions limiting the scope of the standing doctrine, heightening pleading requirements, restricting exceptions to state sovereign immunity and expanding arbitration.  In fact, as Gorod notes, the Chief Justice has sided with the majority in every significant decision bolstering mandatory arbitration agreements, while every case expanding access to the courts has received his emphatic dissent.

    This restricted access to the courts, and in particular the expansion of arbitration as a mandatory alternative dispute remedy, has had far-reaching negative consequences for consumers and workers.  Governed by the Federal Arbitration Act, written arbitration agreements have become a ubiquitous, lurking menace, surfacing to harm consumers again and again and again

  • January 6, 2015
    Guest Post

    by Peter Jan Honigsberg, professor of law at the University of San Francisco and founder and director of the Witness to Guantanamo project.  

    January 11 is the 13th anniversary of the opening of the detention center at Guantanamo Bay, Cuba. Nearly six years have passed since President Obama announced on his second day in office that he would shutter the detention center within one year. 127 detainees still remain at Guantanamo, 59 have been cleared for release, many for years.  Over these 13 years, Guantanamo has been a black stain on America, a stain that Obama himself has acknowledged. Because of Guantanamo, people around the world have come to question the United States’ position as world leader in human rights and the rule of law.

    Several times during his administration, Obama has said that he wanted to close Guantanamo.  Although he has blamed the Republicans for placing restrictions on his ability to release the men, he has repeatedly signed legislation passed by Congress restricting release of the detainees. He cannot blame the Republicans. He has two more years to be true to his word and close the detention center. However, perhaps something is changing.  Since Election Day, he has released 22 people.  It took him three and one-half years (from May 2011 to November 2014) for him to release another 22 detainees. 

    However, it is easier said than done. Congress has continually prohibited detainees from being brought to the U.S. Until Obama can place the men who will be prosecuted, as well as those who are considered “forever” detainees, in prisons outside Guantanamo he cannot close the prison. If he does not close the prison, it is possible that the next president will be equally stymied, and that Guantanamo will only close when the last detainee has died.

  • December 31, 2014
    Guest Post

    by Leslie Bailey, Staff Attorney, and Paul Bland, Executive Director, Public Justice. This post first appeared at the Public Justice Blog.

    USA Today has run a startling and powerful editorial that shines a bright light on a dark practice. All too often, corporations that have manufactured defective and sometimes deadly products, or are engaged in other severely illegal behavior, ask courts to cover up the wrongdoing. Through the excessive use of secrecy orders, far too many courts have sealed evidence and allowed corporations to conceal facts that – if they had become publicly known – would have stopped dangerous and illegal behavior.

    In particular, USA Today focuses on the case of Rich Barber, whom we had the privilege of successfully representing in a challenge to abusive court secrecy. Rich’s son was killed because a Remington rifle had fired without the trigger being pulled due to a design defect that Remington knew about and concealed for decades. USA Today argues that a pattern developed over a number of cases: a particular plaintiff would discover key internal documents of the gun manufacturer relating to the defect and its knowledge, and Remington would settle the cases and demand (and get) broad secrecy orders sealing up the evidence. As a result, the public didn’t learn of the defect for many years, and many more people died. 

    USA Today notes that Rich Barber’s work, and that of Public Justice, helped break down this wall of secrecy. Rich championed important legislation in Montana that now restricts courts from sealing records in cases involving public safety.

    I urge you to read USA Today’s editorial in its entirety, and to share it with others. Its editorial board put the entire problem in perspective:

    Clever use of court secrecy – confidential settlements and ‘protective orders’ to seal documents – helped keep evidence of the rifle’s potential dangers under wraps. Had court documents been public, injuries might have been prevented and lives saved. 

  • December 5, 2014
    Guest Post

    by Paul Bland, Executive Director, Public Justice.

    *This post originally appeared on the blog for Public Justice.

    I regularly hear consumer and workers’-rights advocates say this crazy thing to me: “the cases on forced arbitration are so bad, they can’t get any worse.” Um, wrong. A Missouri Court of Appeals recently issued a decision that bears me out on this point, in Johnson v. Rent-A-Center.

    In this case,an 88-year-old “neighborhood staple”, Kenny Johnson, rents a refrigerator from Rent-A-Center.  A guy from Rent-A-Center comes out to the consumer’s house twice to service the refrigerator. Then, the guy came a third time, the plaintiff alleges, wearing a Rent-A-Center uniform. And, according to the lawsuit and news reports, the Rent-A-Center guy, Eric Patton, seriously beat the man with gashes to his head and robbed him. He wasn’t discovered for three days. The assailant has been criminally charged.

    So in the mouse print of the “agreement” the consumer had to sign to rent the refrigerator was a forced arbitration provision. The forced arbitration provision says that the arbitrator, not a court, will decide when the arbitration clause applies to some dispute. But in this case, the consumer makes a pretty strong point: he went to Rent-A-Center to get a refrigerator, he didn’t go there requesting that they send a guy to his house to beat him up and rob him.

    Too bad, the court says. Listing some very pro-corporation U.S. Supreme Court decisions, the Missouri court holds that it has to enforce the arbitration clause, and let the arbitrator decide whether the dispute over the guy beating up the consumer is covered by the consumer’s contract about renting the refrigerator.  In fairness to the Missouri Court of Appeal, it directly stated that it was bound to follow a U.S. Supreme Court decision, “regardless of whether we agree with the reasoning expressed therein.”

  • December 4, 2014
    Guest Post

    by Neil Kinkopf, Professor of Law, Georgia State University. He also serves on the Georgia Lawyer Chapter Board of Advisors.

    The predictable calls for impeachment went up after President Obama announced his actions on immigration last week. To the surprise of no one, the calls issued exclusively from the president’s Republican detractors. Such partisan calls for impeachment are easily dismissed. In a recent New York Times op-ed, however, Professor Peter Schuck of the Yale Law School lent credibility to the legal basis for these claims, arguing that the president’s action satisfies the constitutional predicate for impeachment (though he advocates that Congress exercise its discretion to decline impeachment).  His argument is worthy of attention, though it fails utterly. 

    The Constitution sets forth the grounds for impeachment:  “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”  Nowhere in the document, however, is the phrase “other high Crimes and Misdemeanors” defined. This absence of a legal definition has led some to conclude that the House of Representatives may impeach for any reason at all. Then-Congressman Gerald Ford gave this idea its most famous articulation:  “an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history ….”  Professor Schuck falls squarely in this camp, declaring “it is pretty much up to Congress to define and apply ‘high crimes and misdemeanors.’” 

    This Nietzschean view (Law is dead, therefore all is permitted) is deeply flawed. Most significantly, it is at odds with the original understanding of the impeachment power. The framers adopted the language “high crimes and misdemeanors” precisely to avoid leaving it “pretty much up to Congress” to decide for itself what constitutes an impeachable offense. During the drafting convention, George Mason suggested that the president be impeachable for “maladministration.” James Madison objected to this formulation on the grounds that it would undermine the independence of the president: “[s]o vague a term will be equivalent to a tenure during pleasure of the Senate.” The constitutional convention then settled on the familiar “high crimes and misdemeanors” language as a way of making sure the standard for impeachment would not be infinitely malleable.