Access to Justice

  • December 13, 2013

    by Caroline Fredrickson, ACS President

    Since its founding in 2001, ACS has enjoyed the great fortune of a consistently strong Board of Directors, with some of the nation’s leading academics, practitioners and activists serving. At our recently scheduled Board meeting we said goodbye to a few long-serving members and selected a new Board chair, David M. Brodsky.  

    David’s legal career is a highly distinguished one. He was formerly a partner of the global law firm Latham & Watkins LLP. Some of his duties included advising foreign and domestic companies with respect to investigations of suspected criminal conduct, complex securities litigation, including class actions and other regulatory investigations and enforcement actions.   

    He is now the sole principal of a mediation and arbitration firm in New York City. Before launching Brodsky ADR LLC to help effectively solve complex disputes, David spent decades building a nationally recognized reputation as one of this nation’s greatest trial lawyers.

    There’s more to the story. David has served as a federal prosecutor, a general counsel to an investment bank and on numerous pro bono boards. His energy and dedication to the legal profession and to making justice accessible is extraordinary. Indeed his very rich, varied legal career has won him honors from numerous national legal publications, being consistently named among the top 100 “Super Lawyers” in New York and listed in the 2012 Best Lawyers in America survey.

    David, in an eloquent ACSblog post, paid tribute to some of ACS’s long-serving Board members whose terms recently ended. But ACS members, supporters and friends should get to know David. He’s an inspiring figure and a tireless advocate of ACS’s work. We’re grateful he’s taken a leadership role on the Board.  

    [image via Brodsky ADR LLC]

  • November 25, 2013
     
    Every year, a few blockbuster Supreme Court oral arguments and decisions dominate the news. In 2013, voting rights, LGBT equality, and affirmative action in education took center stage. Many Americans, whether lawyers or not, understood that these decisions could affect their own lives.
     
    Almost under the radar, however, the Court has been chipping away at the very process that enables the American people to seek redress in court when they’ve been injured. In particular, the Court’s decisions enforcing arbitration clauses and class action waivers have closed the courthouse door to litigants harmed by corporate wrongdoing. Most recently, in American Express Corp v. Italian Colors last Term, the Court ruled that class action waivers are enforceable even when they render it functionally impossible for plaintiffs to vindicate their rights under federal law.
     
    Rich Freer, the Robert Howell Professor of Law at Emory Law School, explains the impact of these cases.
     

  • November 19, 2013
    Guest Post
    by Jo-Ann Wallace, President and CEO, National Legal Aid and Defender Association
     
    Fifty years ago, a unanimous Supreme Court held in Gideon v. Wainwright that “in our adversary system of criminal justice, any person hauled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” This holding was described in the opinion to be “an obvious truth,” a recognition that Gideon’s clear and powerful proclamation – protecting the fundamental human right to liberty – is one that resonates with us all.
     
    But the mandate was not self-executing, and far too little planning or coordination was undertaken to translate the legal pronouncement into consistent practice. The fundamental constitutional right of the Sixth Amendment was left to fall victim to the inertia of the “machinery of criminal justice” – a counterweight poignantly exposed in Gideon -- and the political realities of each state and county. The failure to act on a federal level has reversed the tides of history to the very problem Gideon attempted to correct. That is: local political entities cannot be solely relied upon to ensure the constitutional right to counsel is properly structured and funded. As a result, the Attorney General declared on the anniversary of the Gideon decision: “It’s time to reclaim Gideon’s petition – and resolve to confront the obstacles facing indigent defense providers.”
     
    The criminal justice system is an eco-system in which the component parts are inextricably intertwined. If police officers arrest more individuals, prosecutors have more cases to process and public defense organizations have more people for whom to provide legal representation. However, while other system actors have mechanisms to prioritize cases or to exercise discretion over which cases to pursue, the Constitution affords public defenders no such “release valve” for controlling workload. This reality exacerbates funding inequities that exist at the state and local levels.
  • November 1, 2013
     
    “[I]n our adversary system of criminal justice, any person hauled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” Fifty years ago this past March, Justice Hugo Black wrote those words for a unanimous Supreme Court in holding that the Sixth Amendment provided Clarence Earl Gideon with the right to counsel, despite his indigent status, as he stood trial in Florida for allegedly breaking and entering a Panama City pool hall.
     
    Gideon v. Wainwright forever changed American jurisprudence, ensuring that guilt or innocence in a criminal matter would be fairly adjudicated, regardless of a defendant’s economic circumstance. But as states and the federal government have dramatically slashed their budgets over the last several years, the promise enshrined by Gideon has come under increased threat as public defenders have seen their budgets bear a significant brunt of these cuts.
     
    Congressman Ted Deutch (D-Fla.) introduced this week a bill to help remedy the effect of these cuts and ensure the promise of Gideon. Entitled the “National Center for the Right to Counsel Act,” the measure would establish a private, non-profit center to provide “financial support to supplement…funding for public defense systems” as well as provide “financial and substantive support for training programs that aim to improve the delivery of legal services to indigent defendants.” The Act would also create geographically-based “regional backup service centers” which would provide public defenders with access to investigators and sentencing mitigation experts as well as information on available financial grants. A nine-person “State Advisory Council” would be formed in each state to monitor the quality of public defender services and ensure compliance with the Act.
     
    ACS has been at the forefront of noting the extraordinary importance of Gideon on its 50th anniversary. On Nov. 14, the ACS Minneapolis-St. Paul Lawyer Chapter, along with the ACS Student Chapters at Hamline University School of Law, University of Minnesota Law School, University of St. Thomas School of Law and William Mitchell College of Law, will host former Vice President Walter Mondale for a conversation on Gideon. Moderated by the Honorable Kevin S. Burke of Hennepin County (Minnesota) District Court, Mondale will discuss the importance of indigent defense and his role in Gideon. As Minnesota’s Attorney General at the time, Mondale helped gather attorneys general from 23 states for an amicus brief in favor of Clarence Earl Gideon and the proposition that all felony defendants should be afforded counsel, even if a defendant did not have the means to pay.
  • October 18, 2013
    Guest Post
     
    The U.S. Supreme Court this week heard argument in DaimlerChrysler AG v. Bauman, a case arising out of the Dirty War in Argentina. The plaintiffs allege that Daimler, the German automaker, is responsible for the disappearance and torture of workers at a Mercedes-Benz plant in Argentina, because plant managers identified union leaders and others as “subversives” who were then targeted for persecution. This case is worth watching, because it could herald broad new protections for multinational corporations that enjoy the privilege of doing business in the United States.
     
    The focus of the Supreme Court hearing, however, was not on the substance of the claims, but on whether Daimler can be sued in the United States at all. The Ninth Circuit Court of Appeals ruled that Daimler could be sued in California because its subsidiary Mercedes-Benz USA (MBUSA) does extensive business in California, and MBUSA’s activities could be attributed to Daimler. My organization, EarthRights International, submitted an amicus brief on the side of the Bauman plaintiffs, arguing that the Constitution does not require courts to treat corporations and their subsidiaries separately for jurisdictional purposes, especially where they are economically integrated.
     
    Several justices seemed hostile to the victims of torture and disappearance, but they did not suggest a coherent rationale for dismissing the case. Few seemed to want to constitutionalize a rule of corporate separateness, but most expressed some discomfort with the case.
     
    What’s at stake here is essentially whether Congress, or any U.S. state, has the power to tell a corporation: “If you do business here, even if it’s through a subsidiary, victims of your crimes in other countries can sue you here.” In this case, the abuses are torture and disappearance; in another case it might be selling chemical weapons. Do we really want to establish a constitutional rule that a company that sells chemical weapons to a foreign regime can exercise the privilege of doing business in the United States without submitting to justice from its victims?