Procedural Barriers to Court

  • 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 The Civil Rules Committee argued that the forms were out of date and that the Committee wanted to get out of the form-making business.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 Chief Justice Roberts explained further that the “outdated forms” of the past would be replaced with these “modern versions that reflect current practice and procedure.”

  • 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.

  • July 30, 2015

    by Nanya Springer

    Many people assume that an inevitable consequence of suing someone – or being sued – is a day in court.  After all, a trial by jury in most civil cases is a constitutional right under the Seventh Amendment.  However, fewer and fewer civil suits are resulting in jury trials—less than one percent of federal civil cases since 2005, down from 5.5 percent in 1962.  The trend continues at the state level, where courts have seen a 50 percent drop in jury and bench trials between 1992 and 2005.

    In order to study why the civil jury trial is disappearing, plaintiff’s attorney Stephen Susman, a member of the ACS Board of Advisors and former member of the ACS Board of Directors, has partnered with the New York University School of Law to found the Civil Jury Project.  Susman, who provided the initial funding for the project and will serve as its executive director, says, “The Project will examine why jury trials in civil cases are rapidly vanishing, whether trial by jury still serves a useful purpose in our complex society, and if so what – if anything – can be done to reverse the trend.”

    The first of its kind in the nation, the project was conceived because of Susman’s longstanding commitment to the jury trial right.  In light of the proliferation of binding arbitration clauses and other barriers to the courthouse, Susman has repeatedly expressed concerns about the “privatization of the justice system.”  While serving as executive director of the Civil Jury Project, Susman will continue practicing law full time and teaching law students how to try cases inexpensively—a vital skill for trial lawyers, considering todays’ skyrocketing litigation costs.

    The Project’s inaugural conference will take place on Friday, September 11 in New York. For more information, visit here.

  • February 25, 2015

    by Caroline Cox

    Katrina vanden Heuvel writes in The Washington Post that there is reason to hope for significant criminal justice reform

    In USA Today, Richard Wolf explains the religious discrimination case against retailor Abercrombie & Fitch, which asks to the Supreme Court to consider whether job applicants must ask for religious accommodations or the employer should recognize the need for them.

    David Welna reports for NPR on how the Senate Intelligence Committee report on the CIA interrogation and detention techniques has changed arguments for terrorism suspects at Guantanamo Bay.

    Scott Dodson discusses Justice Ruth Bader Ginsburg and her impact on the Supreme Court and modern jurisprudence at Hamilton and Griffin on Rights.

    In The New York Times, Katie Zernike reports on a New Jersey judge’s ruling that Governor Chris Christie broke the law by not making full pension payments.

    Mark Joseph Stern takes a look in Slate at new plans from state legislatures to tackle the problem of rape on college campuses.

  • January 27, 2015

    by Nanya Springer

    The Constitutional Accountability Center recently released the fifth installment of its year-long series, “Roberts at 10,” in which Brianne Gorod details the ways Chief Justice John Roberts’ voting record has undermined the public’s access to the courts.  She points out that Roberts has consistently taken positions limiting the scope of the standing doctrine, heightening pleading requirements, restricting exceptions to state sovereign immunity and expanding arbitration.  In fact, as Gorod notes, the Chief Justice has sided with the majority in every significant decision bolstering mandatory arbitration agreements, while every case expanding access to the courts has received his emphatic dissent.

    This restricted access to the courts, and in particular the expansion of arbitration as a mandatory alternative dispute remedy, has had far-reaching negative consequences for consumers and workers.  Governed by the Federal Arbitration Act, written arbitration agreements have become a ubiquitous, lurking menace, surfacing to harm consumers again and again and again