Access to Justice

  • March 12, 2013

    by Jeremy Leaming

    While President Obama has advanced some eloquent calls for expanding equality, his administration must take more action to ensure equality in the workforce, according to a new ACS Issue Brief.

    Landmark measures such as Title VII of the Civil Rights Act of 1964 and President Lyndon Johnson’s executive order banning federal contractors from employment discrimination have been undermined by federal judges far too eager to protect the rights of employers, write Ellen Eardley and Cyrus Mehri in “Defending Twentieth Century Equal Employment Reforms in the Twenty-First Century.” 

    Citing Simon Lazarus, an attorney with the Constitutional Accountability Center, Eardley and Mehri write that lower federal court judges “have been ‘aggressively activist in narrowing, undermining, and effectively nullifying an array of progressive statutes,’ including statutes involving civil rights and affirmative action.” Eardley and Mehri, attorneys with Mehri & Skalet, PLLC, also note that former federal court judge Nancy Gertner has “recently declared that ‘changes in substantive discrimination law since the passage of the Civil Rights Act of 1964 [are] tantamount to a virtual repeal.’”

    The authors also cite a study from the Harvard Law & Policy Review, the official journal of ACS, which reveals data showing that from 1979 through 2007 judges have increasingly sided with employers in employment discrimination cases and that the rare victories for workers are frequently invalidated at the appellate level. The study by Stewart J. Schwab and Kevin Clermont “found that the anti-plaintiff effect on appeal particularly disturbing because employment discrimination cases are fact-intensive and often turn on the credibility of witnesses.”

    And it’s not just the lower courts that have made it difficult for workers to challenge employer malfeasance, the authors add, noting that the U.S. Supreme Court has issued opinions making it tougher to bring class actions claims and providing federal courts with greater power to quickly dismiss workers’ employment discrimination cases.

    “The Draconian view of Title VII, distortion of the basic principles of civil procedure, and the new hurdles to class certification adopted by the federal judiciary make it difficult for employees to vindicate their rights,” Eardley and Mehri write.

  • March 11, 2013

    by E. Sebastian Arduengo

    The Financial Industry Regulatory Authority or FINRA recently found that Charles Schwab, violated FINRA consumer protection rules by including provisions in customer agreements where customers waived their right to assert claims through the class action mechanism. The punishment for trying to structure a customer agreement that effectively allows Schwab to cheat their customers without fear of repercussion? A slap on the wrist.

    FINRA's weak action was a result of the U.S. Supreme Court's opinion in AT&T v. Concepcion. The Court held that arbitration agreements that waived a party’s ability to bring a class action must be enforced, even if they were in “take it or leave it” contracts of adhesion, where the consumer had no choice but to agree if they wanted cell phone service. At the time, The New York Times noted “the decision … appeared to provide businesses with a way to avoid class-action lawsuits in court. All they need do … is use standard-form contracts that require two things: that disputes be raised only through the informal mechanism of arbitration and that claims be brought one by one.”  

    This brings us back to the FINRA decision, which is a perfect application of the litigation strategy outlined by The Times, and shows why Concepcion was such a terrific decision for corporate America (not so much for the rest of us). In direct response to the Supreme Court’s ruling in Concepcion , Schwab put new waiver provisions in their 2011 customer agreements, which covered close to seven million customers. The waivers that they put into the 2011 customer agreements were worded such that any customer claim against Schwab had to be arbitrated “solely on an individual, case-by-case basis.”

  • February 27, 2013

    by E. Sebastian Arduengo

    Two hundred and twenty three days is a long time to wait for a new job. Yet, that’s the average number of days that an Obama judicial nominee must wait from nomination to confirmation.

    While they’re waiting, they have to put their professional lives on hold, lest they inadvertently do anything that might stall their confirmation. And, that’s just the average nominee; many have waited much, much longer. Caitlin Halligan, one of President Obama’s nominees to the influential Court of Appeals for the D.C. Circuit has been waiting nearly three years for her confirmation to go through a bitterly divided Senate. Some say that Halligan’s nomination is controversial because of her statements on the Second Amendment and detainee rights. But, even completely uncontroversial nominees who are rated as “highly qualified” by the American Bar Association, like Bill Kayatta, who was recently confirmed to sit on the First Circuit, have languished for months in the Senate. Robert Bacharach, who was recently confirmed to the U.S. Court of Appeals for the Tenth Circuit, had his confirmation delayed in a filibuster aided by his home-state Senators.

    When judges have to wait to take their posts, ordinary people have to wait increasingly longer for routine legal matters to get resolved. Right now there are 88 vacancies in the federal judiciary, about a third of those are considered judicial emergencies – where the judges on a court have so many cases that they are forced to preform judicial triage. In those courts, resolving a civil case can take years because criminal matters take higher priority on the docket, and even those can be significantly delayed despite the constitutional guarantee of a speedy trial. In some districts, there are so many vacancies that a term like “ghost court” wouldn’t be far off the mark. Six judgeships in the Eastern District of Pennsylvania, which includes Philadelphia, are vacant, along with five judgeships in the District of Arizona. There are even federal courthouses that have literally been sitting empty for years because no one has even been nominated to fill those judgeships.

  • February 19, 2013
    Guest Post

    by U.S. District Court Judge Robert W. Pratt, Southern District of Iowa


    In late January, U.S. Sen. Tom Harkin (D-Iowa) announced he would retire when this session of Congress ends in December, 2014. I have known Tom Harkin since we worked together as young lawyers at the Polk County (Des Moines, Iowa) Legal Aid Society. The first paragraph of any article about Harkin must mention the Americans with Disabilities Act, the landmark civil rights legislation outlawing discrimination against those with disabilities passed in the congress of 1989-90. This is as it should be because that law has literally changed the face of America but there is so much more, however, that most people do not know about his work.

    While at Polk County legal aid as a young lawyer he lobbied the Iowa legislature to pass the Uniform Consumer Credit Code, lobbied to eliminate the sovereign immunity for tort liability for governments, worked against those who wanted to raise the interest rates for consumers and challenged in the Iowa Supreme Court a loitering ordinance that was used indiscriminately against the poor.

    Although Iowa is now a politically competitive state, it was not always so.  From the time of the Civil War, just as southern states were solidly Democratic, Iowa was solidly Republican.  It was once common wisdom that “Iowa would go Democratic when hell went Methodist.” Remarkably   Harkin, during his political career has defeated five incumbent members of Congress, and is the only Democrat in Iowa’s history to be re-elected to the U.S. Senate. Along the way he has helped Iowa’s state Democratic Party to be one of the most progressive and best organized in the country. Harkin’s political legacy in Iowa is secure because of that and also because so many of his former staff and campaign people are prominent in today’s progressive movement.         

  • February 1, 2013
    by E. Sebastian Arduengo
     
    Much was made of Wednesday’s Senate hearing on guns. While there has already been extensive coverage of emotional moments at the hearing, like the heated exchange between Patrick Leahy (D-Vt.) and National Rifle Association President Wayne LaPierre about universal background checks, or former Congressman Gabrielle Giffords opening statement, the testimony of Gayle Trotter of the Independent Women’s Forum was undoubtedly the most outrageous. She started out her testimony by arguing that guns were the great equalizer for women, because “hand-to-hand combat” favors men. Never mind that there are commercially available non-lethal protection options out there, like mace and tasers. But, that was only the tip of the iceberg for Ms. Trotter, who later said that women like the way that AR-15s look (in fact it’s her gun of choice), and that women need high-capacity magazines for situations where two, three, or four attackers are coming and she needs enough firepower to kill them all. A couple of hours into the hearing, she got to explain her view of Second Amendment constitutional theory.
     
    She testified that as a woman, she thought it was important not to put an undue burden on women’s Second Amendment rights to choose to bear arms to defend themselves. Because, that’s what the Second Amendment was about - choice. If Ms. Trotter knew how the undue burden standard from Planned Parenthood v. Casey has actually been applied in the reproductive rights sphere, she wouldn’t be so eager to analogize it to gun rights, which have enjoyed a standard of higher scrutiny since the Heller II decision. In fact, nearly all of the pro-gun witnesses argued that there were already a number of gun-control laws on the books that were already quite burdensome, like having to submit to a background check when purchasing a firearm from a federally-licensed dealer. The pro-gun witnesses added that these laws that are already on the books were simply not being enforced!