Access to Justice

  • November 18, 2015
    Guest Post

    by Doron M. Kalir, Clinical Professor of Law, Cleveland-Marshall College of Law

    The fact that the Roberts Court is business-friendly is, by now, well documented. It is also no secret that the Court is generally hostile to the once-venerable institution of class actions. And most recently, as The New York Times ably demonstrated, the Court has moved to elevate arbitration as the preferred mode of dispute resolution. The accumulated effect of these three trends has been devastating: Millions of Americans – customers, employees, patients, and investors, among others – are routinely denied their fundamental right to have a day in court. Some call that the privatization of the justice system.

    DIRECTV, Inc. v. Imburgia, a case emerging out of an intermediate state court in California, is another case reflecting these trends. At first sight, it may not seem a likely candidate to become one of the Term’s blockbusters. Allegedly a typical state contract-interpretation case, it looks benign, almost boring to read. Yet it is anything but. It represents nothing short of a last-ditch effort by state courts to shield consumers from these emerging trends. Will it be successful or – as some predict – destined to fail? Only days will tell.

    The facts of the case are somewhat complicated. In 2007, Amy Imburgia contracted with DIRECTV to receive programming services. Predictably, her Customer Agreement contained an arbitration-only, no-class action clause. Unpredictably, it also contained language abolishing that clause should “the law of your state . . . find this agreement to dispense with class action procedures unenforceable.” And that is precisely what happened – the California Supreme Court held such provisions to be “unconscionable” and therefore unenforceable.

    Four years later, in AT&T Mobility v. Concepcion, the U.S. Supreme Court reversed the California rule. Class-action waivers in arbitration agreements, the 5-to-4 decision held, are enforceable, reasoning that the Federal Arbitration Act (FAA) preempts state law. Despite Concepcion, however, the California Court of Appeals ruled in this matter that the individual-only arbitration clause is still unenforceable. Why? The court reasoned that the term “the law of your state,” as included in this particular consumer contract, should not be interpreted to include federal interpretation of that law (the “Supremacy Clause” version), but rather only state law as interpreted by state courts.

  • November 6, 2015
    Guest Post

    by Christina Swarns, Director of Litigation, NAACP Legal Defense and Educational Fund, Inc.

    In 1879, the United States Supreme Court declared that the singling out of qualified African Americans for removal from jury service “is practically a brand upon them, affixed by the law, an assertion of their inferiority, and a stimulant to that race prejudice which is an impediment to securing individuals of the race that equal justice which the law aims to secure all others.” Although, in the subsequent 136 years, the Supreme Court has repeatedly condemned the practice of racial discrimination in jury selection, today, African Americans are excluded from jury service in ways that “seem[] better organized and more systematized than ever before.” Case in point: Foster v. Chatman, the jury discrimination challenge that was argued to the Supreme Court on Monday, November 2, 2015.

    Foster challenges Georgia prosecutors’ use of peremptory challenges to exclude African-American prospective jurors from the 1987 trial of Timothy Foster, an African-American man with intellectual disabilities who was charged with the murder of a White woman. Peremptory challenges are lawful opportunities for both prosecutors and defense attorneys to excuse prospective jurors from service in a particular trial. But there are limits to their use: In 1986, the Supreme Court held that these challenges cannot be based on race. Nonetheless, in Mr. Foster’s case, the prosecutors struck every single African-American prospective juror. As a result, an all-White jury convicted Mr. Foster of murder and sentenced him to death.

    When challenged, the Foster prosecutors offered a literal laundry list of supposedly race-neutral reasons for each of the strikes they exercised against the African-American prospective jurors. But the prosecutors’ notes, which were uncovered by the defense team some 20 years after Mr. Foster’s conviction, tell a completely different story. A note indicated that green highlighting “represent[s] blacks,” and the names of all the African-American jurors, but none of the White jurors, were highlighted in green. In their notes, the prosecutors referred to the African-American prospective jurors as “B#1, B#2, B#3,” while none of the White jurors were referred to solely by reference to race. In the prosecutors’ list of prospective jurors to strike, the name of every single prospective African-American juror was at the very top. The prosecutors ranked the African-American potential jurors in case they might “have to” seat one of them, but there was no similar ranking of all of the White prospective jurors. And last but not least, the supposedly race-neutral reasons offered by the prosecutors simply do not hold up: For example, the prosecutors said they struck one 34-year-old African-American juror because she was too close to the defendant’s age of 18, even though they accepted multiple White jurors who were actually closer in age to 18.

  • November 2, 2015
    Guest Post

    by Ross Eisenbrey, Vice President, Economic Policy Institute

    *This piece originally appeared on EPI’s “Working Economics Blog.”

    The New York Times has published two parts of a three-part series about the epidemic of arbitration clauses that have cropped up in millions of transactions between corporations and their customers and employees. The clauses are routinely included in employment contracts, cell-phone contracts, consumer product purchase agreements, cable subscriptions, rental agreements, and a multitude of financial transactions, as a way to prevent injured parties from having their day in court. Giving up the constitutionally protected right to sue in state or federal court is a big deal and is often the result of ignorance and deceit: millions of people have no idea the clauses are there in the fine print of contract provisions written in legalese that few individuals ever read or comprehend. They don’t find out they’ve lost their rights until they need them.

    Individuals give up not just their right to go to court but all protections regarding the venue of any hearing their claim will receive (for example, the agreement might require arbitration in a city a thousand miles away). They might give up certain remedies and the right to appeal even if the arbitrator gets the law completely wrong, and give up the essential right to join with other victims to file a class action, especially important when each claim is small and no single individual could rationally pay to hire a lawyer and bring a lawsuit for such a small sum.

    The myth is that arbitration is preferable because it allows individuals to resolve their grievances easily, quickly, and cheaply. In fact, arbitration can be more expensive for a plaintiff than a civil suit because instead of a small filing fee in court, the plaintiff will have to pay half of the arbitrator’s fee, or sometimes all of it if the arbitration clause includes a “loser pays” provision. Legal fees can be ruinous, and the Times story relates the case of a woman who owes $200,000 in attorney fees after losing a case in which her former employer allegedly destroyed evidence.

    Perhaps the worst aspect of the forced arbitration epidemic is the loss of a neutral trier of fact. Unlike judges who have lifetime appointments to the bench and are protected from financial pressure, arbitrators rely on the companies to use them again and again, creating a financial pressure to please the corporation that will have many arbitration cases in the future rather than the individual plaintiff, who will probably never use an arbitrator again.

  • 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.