Access to Justice

  • September 9, 2013
    Guest Post

    by Senator Sheldon Whitehouse (D-R.I.). Sen. Whitehouse is a member of the Health, Education, Labor, and Pensions (HELP) Committee, as well as the Budget Committee, Environment and Public Works Committee, Judiciary Committee and the Special Committee on Aging.

    James Madison famously observed in Federalist 39 that our American experiment depends on “the capacity of mankind for self-government.”  History has vindicated Madison’s faith in the American people, but we must not grow complacent.  Recent Supreme Court decisions, for example, have undermined Americans’ ability to participate in our system of self-government by opening the floodgates to corporate cash in our elections and eliminating the provision of the Voting Rights Act that has protected millions of Americans from discriminatory voting practices.  Another institution within our system of self-government – the civil jury – is also under attack and is disappearing, with little fanfare.  It is time to sound the alarm.

    As I recently explained in the National Law Journal, the civil jury came to the United States with the earliest colonists.  It provided a means of self-government for Americans who chafed under British rule, and its preservation was vital to the founding generation.  Consequently, the Seventh Amendment  protected access to the civil jury, which serves, in the words of Alexis De Tocqueville, as a “political institution” and “one form of the sovereignty of the people.”

    Unlike other institutions of government which can be dominated by the rich and the well-connected, the civil jury puts all citizens equal before the law.  As Sir William Blackstone observed, the jury “preserves in the hands of the people that share, which they ought to have in the administration of public justice, and prevents the encroachments of the more powerful and wealthy citizens.”  The Founders wished to assure that when the executive is corrupt, when powerful interests have the legislature tied in knots, and when the press has turned against you, the hard square corners of the jury box still stand strong.

  • August 27, 2013
    Guest Post


    by Scott Michelman, attorney, Public Citizen Litigation Group Michelman wrote the plaintiffs’ successful petition to appeal in Roach v. T.L. Cannon, and will brief and argue the case before the Second Circuit.

    When big corporations have a legal problem, they usually have no shortage of legal help - from lawyers on their own payroll or from large law firms to whom they pay hundreds of dollars an hour.

    When ordinary wage-earners have a legal problem - such as being underpaid at work - obtaining relief can be a bigger challenge. Most people can't afford to hire a big law firm, and even if the amount of a legal dispute is significant to the individual, it may not be large enough to entice a for-profit lawyer to take the case.

    One of our system's most important tools for leveling the playing field and providing access to the courts is the class action. This device enables people who have been wronged in a similar way to join together to pursue relief in court. Even if the value of the case to each individual is small, the aggregation of the claims makes the case big enough for a lawyer to pursue it.

  • August 5, 2013
    Guest Post

    by Brandon L. Garrett. Since the 2011 publication of Convicting the Innocent: Where Criminal Prosecutions Go Wrong, Professor Garrett has written widely on issues of criminal procedure, forensic science, and the law. Below, he outlines three recent Supreme Court rulings whose importance has been overshadowed by the term’s several high profile and historic decisions. This piece is cross-posted on the Harvard University Press Blog.

    With the past Term’s Supreme Court’s decisions behind us, commentators, scholars, and judges, are still processing the implications of the major decisions on race, voting rights, and same sex marriage. Understandably less noticed have been three decisions with real implications for criminal justice. In cases concerning the procedural barriers to relief when evidence of innocence arises after conviction, the expanded collection and storage of DNA, and the conduct of police interrogations, the Court issued rulings that bear on the accuracy of our criminal justice system.

    First, the Court continues to recognize that innocence should be an important consideration for federal judges reviewing prisoners’ habeas petitions. In McQuiggan v. Perkins, the Court recognized for the first time that evidence of a prisoner’s innocence can provide an exception to the restrictive one-year statute of limitations imposed in 1996 by Congress in the Antiterrorism and Effective Death Penalty Act (AEDPA). However, the Court somewhat gratuitously emphasized that this innocence exception would be “severely confined” and that the class of prisoners able to show that a jury presented with new evidence would be likely not to convict may be quite small.

  • August 2, 2013
    Guest Post
    Harry Baumgarten is a Juris Doctor and Master of Public Policy Candidate at Georgetown University where he serves as the ACS Chapter President. He also currently serves as a summer law clerk at Kohn, Kohn & Colapinto, LLP and the National Whistleblowers Center.
     
    If the debate over Bradley Manning and Edward Snowden has taught us anything, it is that the term whistleblower still carries with it undeserved negative connotations of greed, spite, narcissism and disloyalty. Yet, nothing could be further from the truth. Instead, whistleblowers are by and large highly principled individuals with an undying loyalty to the truth and public welfare— frequently at great personal cost.
     
    President Obama acknowledged as much in 2009, stating that, “[o]ften the best source of information about waste, fraud, and abuse in government is an existing government employee committed to public integrity and speaking out.” Such was the case for FBI whistleblower Fred Whitehurst who, while serving as head of the FBI crime labs, alerted the public to widespread evidence contamination that contributed to the wrongful conviction of an untold amount of people and the complete perversion of justice. The case of Fred Whitehurst reveals that for a society based upon the rule of law and public accountability, nothing is nobler than lawfully reporting violations of the public trust. This is and has always been a fundamental precept of our national ethos.
  • July 25, 2013
    Guest Post

    by Brian Korpics, Law Fellow at the Environmental Law Institute

    For three decades, the Equal Access to Justice Act (EAJA) has enhanced parties’ ability to hold government agencies accountable for their actions and inaction. EAJA allows individuals, small businesses and nonprofits to recover attorney fees from the federal government. Fee awards are available only in cases where plaintiffs prevail and the government cannot demonstrate that its legal position was “substantially justified.”The law is used to vindicate a variety of federal rights, including access to Veterans Affairs and Social Security disability benefits, as well as to secure statutory environmental protections: it promotes public involvement in laws such as the National Environmental Policy Act, Clean Air Act and Clean Water Act. EAJA also helps deter government misconduct and encourages all parties, not just those with resources to hire legal counsel, to assert their rights. The lawhas generally enjoyed bipartisan support since its enactment in 1980.