Access to Justice

  • January 29, 2016
    Guest Post

    by Ross Eisenbrey, vice president, Economic Policy Institute

    *This post originally appeared on

    Employers are increasingly forcing employees to give up their right to sue in court and to accept private arbitration as their only remedy for violations of statutory and common law rights. Private arbitration can forbid class actions, limit damages, allow the employer to choose the arbitrator, and cut off appeals, resulting in a system unfairly tilted in the employer’s favor. As Stone and Colvin find, employees are much less likely to win in mandatory arbitration than in federal court: employees in mandatory arbitration win only about a fifth of the time (21.4 percent), whereas they win over one-third (36.4 percent) of the time in federal courts.

    Differences in damages awarded are even greater. The typical award in mandatory arbitration ($36,500) is only 21 percent of the median award in the federal courts ($176,426). While there are additional factors to consider in comparing the two systems, at the outset it is important to recognize that in a simple comparison, mandatory arbitration is massively less favorable to employees than are the courts.


  • January 12, 2016
    Guest Post

    by John Paul Schnapper-Casteras, Special Counsel for Appellate and Supreme Court Advocacy at the NAACP Legal Defense and Educational Fund, Inc. Follow him on Twitter @jpscasteras.

    Chief Justice John Roberts’ yearly report on the state of the federal judiciary begins with a colorful, if curious, historical allusion to the once-prevalent practice of settling disputes (and petty grievances) by dueling to the death.  Addressing a new set of procedural rules that could limit how litigants discover information before trial, the Chief Justice declared that changing today’s inefficient litigation practices is akin to eliminating dueling in America.

    Perhaps the Chief's choice of analogies was inspired by his recent viewing of the hit Broadway musical about Alexander Hamilton, who was needlessly killed in a duel with Aaron Burr.  The show is a highly acclaimed hip-hop interpretation of the life of Hamilton and of the founding of our nation, so I can understand how its infectious score of compelling songs – like “Ten Duel Commandments” – might have influenced the Chief’s thinking.  

    Although the invocation of dueling to discuss civil procedure rule changes is, of course, tongue-in-cheek, there is something about this analogy that seems particularly ill-fitting.

    For one, the Chief’s suggestion that “a change in culture left dueling by the wayside” does not tell the whole story.  Archaic practices like dueling were eliminated, in no small measure, by the creation of a court system that fairly addressed a broad range of disputes, opened access to such tribunals, and channeled everyone towards those institutions.  Indeed, the Chief Justice cites an 1838 booklet which made this very point: dueling was expected “where there is no tribunal to do justice to an oppressed and deeply wronged individual.”  This expectation has been borne out by the fact that, in recent decades, courts – and federal courts in particular – have proven essential to vindicating the civil rights of racial minorities and protecting the constitutional protections of a whole range of individuals.  Common-sense recognizes this too: for example, when two neighbors have a minor property dispute, they normally forego dueling not just because it’s culturally passé, but also because they have ready access to a judicial resolution – thanks to fora like small claims court and friendly legal procedures that lower the barriers to entry.

    And herein lies the irony.  The new rules praised by the Chief may erect barriers to individuals in civil rights cases and were adopted in a process that has drawn criticism for a lack of inclusiveness and transparency.  Specifically, the new “proportionality” language in Rule 26 addresses a critical component of litigation known as discovery, whereby parties exchange information about each other in order to flush out the facts of the case and facilitate the resolution of legal disputes.  For years, litigants could generally request information “reasonably calculated to lead to the discovery of admissible evidence.”  But the recently revised rules declare that such requests must also be “proportional to the needs of the case.”  Because that seemingly small change could seriously restrict access to information in civil rights suits and employment discrimination cases, the NAACP Legal Defense & Educational Fund, Inc. testified against it.  Of course, questions remain about how narrowly the new “proportionality” rules will be implemented and interpreted and whether the Report’s hyping of them (i.e., they’re a “big deal”) may actually be “overkill.”  Nevertheless, controversy has emerged about whether the rollout of this rule, as well as unofficial supplementary guidelines, have been unduly influenced by certain corporate voices and/or blurred lines between the private sector and official, judicial processes. 

    In addition, as others have pointed out, there is particular irony in the Chief Justice so lavishly praising the “meticulousness” of the rulemaking process as a model of inclusiveness and professional deliberation when the Supreme Court bypassed this very process and sweepingly altered the way in which people can bring lawsuits under the federal rules, through cases like Twombly and Iqbal

    Enlarging access to justice has proven essential to eliminating brutish practices like dueling – along with state-mandated segregation and bans on interracial marriage – and remains as important today as ever.  Yet the very rules the Chief lauds may turn out to constrict rather than preserve access to essential information in civil rights lawsuits and beyond.  When we make it harder for people to fully air and address (not just speedily dismiss) disputes through the litigation process, we undermine public confidence in the system and we promote, rather than discourage, extra-judicial means of dispute resolution.  The judiciary, and the procedural rules that govern it, can and should encourage everyone to resolve controversies and vindicate rights within the legal system fairly, efficiently – and, of course, without dueling.

  • January 4, 2016
    Guest Post

    by Brooke D. Coleman, William C. Oltman Professor of Teaching Excellence, Seattle University School of Law

    When the Federal Rules of Civil Procedure were adopted in 1938, they came with a set of forms that were meant to illustrate and, importantly, suffice under the rules. These forms, according to the original rule makers, were key to the success of the Civil Rules because they would be the “pictures” that would accompany the rules. It is worth remembering that the ethos behind the adoption of the 1938 Civil Rules as a whole was to eliminate needless technicalities and barriers to access. Simplifying the process so that the merits could be reached was the goal. The forms were an important part of reaching that goal because a litigant could use the form, and as long as the form was used correctly, courts had to accept it.

    As of December 1, 2015, Rule 84 and the Official Forms were erased from the Civil Rules forever. As I have written here and here, there are a number of reasons to believe that this was a bad idea. (Others have also argued as much here and here.) The Civil Rules Committee argued that the forms were out of date and that the Committee wanted to get out of the form-making business. The easiest solution was to eliminate the forms altogether. As a consolation for eliminating the forms, the Committee stated that the Administrative Office of the Courts would publish sample forms for federal court litigants. It appears that this consolation prize is indeed in the works.

    In his year-end report for the Court, Chief Justice John Roberts explained that some new forms had already been drafted by “a group of experienced judges” assembled by the Administrative Office of the Courts. These new forms can be found here. Chief Justice Roberts explained further that the “outdated forms” of the past would be replaced with these “modern versions that reflect current practice and procedure.”

  • December 23, 2015

    by Jeremy Leaming

    University of Chicago law school professor Geoffrey Stone details a history of fear unsettling free speech rights in a piece for The Huffington Post. While a few law professors have recently argued that some restrictions on the First Amendment are needed in the face of terrorist threats, Stone writes:

    Given our grim history in periods of perceived or real crisis, and given how long it has taken us to attain the wisdom and insight we have gained through painful national experience, this is definitely not the time to turn back the clock and to revert to long discredited doctrines that served us so poorly in the past.

    Reuben Guttman, a leading litigator and founding partner of Guttman, Buschner & Brooks, looks at how increasingly public lives are shaping litigation. In a piece for The Global Legal Post, he writes:

    These days, trial lawyers comb through electronic databases reviewing emails that have not been filtered through drafting and editing. It is an age where we say what is on our mind, press a button and transmit information with typos, wit, and sometimes wisdom, but always with stream of consciousness.

    Will the Roberts Court, which has built a jurisprudence track record of advancing corporate America’s interests, further restrict legal means to challenge corporate malfeasance? Public Justice’s Chairman Arthur Bryant in a piece for The National Law Journal writes that recent oral argument in three cases suggest that “for three reasons, the court may be unlikely to issue the far-reaching decisions the corporations are seeking – and class action practitioners fear.”

  • December 2, 2015
    Guest Post

    by Jason Steed, Associate at Bell Nunnally and president of the ACS Dallas-Ft. Worth Lawyer Chapter

    Class actions are crucial to protecting the rights and interests of workers and consumers. If an employer underpays a worker a few dollars every paycheck—or a credit card company overcharges a consumer a few pennies per transaction—the total loss to that worker or consumer might be only a few hundred dollars. That might be a lot of money to the individual worker or consumer, but it’s not enough to justify hiring an attorney for a lawsuit. Class actions enable dozens or hundreds or even thousands of individuals to bundle their claims into a single lawsuit so workers and consumers can recover the sums they are owed. And the threat of a class action discourages corporations and other entities from adopting schemes that might nickel-and-dime us to death.

    This is why the Supreme Court’s recent decisions undermining class action litigation are of great concern to those who care about the rights and interests of workers and consumers. In 2011, for example, in a case called Wal-Mart Stores v. Dukes, the Supreme Court made it much harder to certify a nationwide class action for employees seeking to recover lost pay due to sexual discrimination. According to the Court’s majority in Dukes (made up of the five most conservative justices), employees can’t bring a class action for sexual discrimination unless they can show that every worker in the proposed class suffered exactly the same sort of bias and discrimination. Statistical sampling isn’t good enough to support the class action. And without the ability to rely on statistical sampling to show commonality among members of the proposed class, large corporations will now be much less likely to face large class actions based on claims of discrimination.

    This Dukes decision looms in the background as the Court considers another important class action case this term. In Tyson Foods, Inc. v. Bouaphakeo, a group of several thousand employees at Tyson Foods brought a class action claiming Tyson failed to pay them sufficient wages for the time they spent donning (putting on) and doffing (taking off) personal protective gear before and after work. To prove the amount of lost wages, the workers relied on statistical sampling—averaging the times that various employees spent donning and doffing their gear. The district court certified the class, a jury returned a verdict of $5.8 million for the employees, and the Eighth Circuit Court of Appeals affirmed this judgment.