Procedural barriers to court

  • February 14, 2014
    Guest Post

    by Brooke D. Coleman, Associate Professor, Seattle University School of Law

    Litigation reform is bandied about in an inevitable way. The narrative supporting such reform says that corporations are coerced into settling frivolous claims because the cost of litigating in federal court is so high. Further, the story goes, corporations do not want to be in the United States because the litigation risks are too much. This narrative of excessive cost and abuse is used to justify various litigation reforms, ranging from tort reform to attorney sanctions. The most recent entrant into the reform fray comes from the Committee on Rules of Practice & Procedure of the Judicial Conference of the United States. This rulemaking body has proposed amendments to the Federal Rules of Civil Procedure. These amendments would make it easier for parties to resist producing documents, provide greater protection to parties who fail to preserve key information, and limit the number of ways parties can request information from one another. By limiting access to information in this way, these proposed amendments to the discovery rules promise to lower litigation costs. 

    The problem with this narrative and the attendant reforms is that they are inaccurate. First, discovery costs are generally not too high in comparison to the stakes parties have in litigation.  Second, the argument that the proposed restrictions on discovery are justified undervalues the benefit of civil litigation.

  • 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.

  • June 28, 2013
    Guest Post

    by Emily J. Martin,  Vice President and General Counsel at the National Women's Law Center

    You may have missed it in the flurry of newsmaking by the Supreme Court this week, but on Monday, five of the Justices gave early Christmas presents to defendants accused of employment discrimination, when the Court handed down important decisions in two Title VII cases: Vance v. Ball State University and University of Texas Southwestern Medical Center v. Nassar.  In both Vance and Nassar, the 5-4 decisions ignored the realities of the workplace and the ways in which employment discrimination and harassment play out every day.  Placing new obstacles in the path of workers seeking to vindicate their rights, the Court set aside the longstanding interpretations of the Equal Employment Opportunity Commission (the agency charged with enforcing Title VII), and closed out a term in which the Court repeatedly limited the ability of individuals to challenge the actions of powerful corporations.

    Justice Samuel Alito wrote the Vance decision.  Prior cases have held that when a plaintiff shows she was sexually harassed, or racially harassed, or harassed on some other unlawful basis by a supervisor, her employer is liable, unless the employer can prove that the plaintiff unreasonably failed to take advantage of a process that the employer provided for addressing harassment. An employer is only liable for harassment by a co-worker, however, when a plaintiff can show that the employer was negligent in controlling working conditions—a far tougher standard.  Vance posed the question of who is a supervisor: Is it only someone who has the authority to hire, fire, or take other tangible employment actions? Or is it anyone who oversees and directs the plaintiff’s work on a day-to-day basis? Ignoring the ways in which day-to-day supervisors have been invested with authority over other employees that empowers them to harass, the Court ruled on Monday that employers are not vicariously liable for harassment by day-to-day supervisors who do not have the authority to hire, fire, and the like. Indeed, showing even more solicitousness for the interests of employers than the defendant in the case had shown for itself, the majority adopted an even narrower interpretation of the word “supervisor” than had been urged by Ball State.

  • May 30, 2013
    Guest Post

    by Brandon L. Garrett and Lee Kovarsky. Garrett is a professor of law at the University of Virginia School of Law and Kovarsky is an assistant professor of law at the University of Maryland School of Law. They are co-authors of a habeas corpus casebook, Federal Habeas Corpus: Executive Detention and Post-conviction Litigation, which was just published by Foundation Press.

    This week, the Supreme Court handed down habeas decisions on two different gateways through procedural obstacles to federal habeas review. The first decision involved an “innocence” gateway. In McQuiggan v. Perkins, the Court held that, despite a constitutional claim’s untimeliness, a federal court could reach the claim’s merit if there exists a reasonable chance that the inmate was wrongfully convicted. The second gateway is a “bad lawyering” gateway. In Trevino v. Thaler, the Court held that inadequate state post-conviction representation can excuse the default of a trial-phase ineffective-assistance-of-counsel (IAC) claim if, as a practical matter, a state post-conviction proceeding was the only forum for a state inmate to raise it. In each case, the Court avoided mechanical readings of statutes or precedents in favor of interpretations that reflect the byzantine reality of modern habeas corpus review.

    In the “innocence gateway” case, Floyd Perkins was serving a life sentence in Michigan. Perkins argued that he had new evidence proving his innocence: witnesses would say that another man was the killer, that the other man had bragged he had done it, and that the other man was trying to wash blood-stained clothes the day after the killing. Perkins had been convicted largely based on testimony of the other man, as well as two others who said they overheard Perkins admit his guilt. Perkins argued that his new evidence of innocence entitled him to merits review of his IAC claim, which was untimely under the one-year federal limitations period. He could not, however, show that he had acted with “due diligence” in bringing this evidence to the attention of the judge. He argued that new evidence of innocence should excuse the untimely filing, notwithstanding the technical defects in the petition.

  • May 3, 2013

    by E. Sebastian Arduengo

    Last month, U.S. Senator Patrick Leahy (D–Vt.) reintroduced the Gideon’s Promise Act of 2013 to address the problems plaguing the indigent defense system which have left the promise of Gideon v. Wainwright increasingly hollow for the poorest people in our society. The act would require states to use existing federal funds to improve the administration of criminal justice in a comprehensive, strategic way, and to collaborate with the Department of Justice and local authorities to devise a plan for adequately addressing indigent defense needs. If states refuse to comply then the Department of Jusice would have the power to take them to court to make sure that they are meeting their constitutional obligations.

    But Leahy’s bill doesn’t go nearly far enough to address budget-related failings in our criminal justice system. With sequestration at the federal level, and years of budget cutbacks at the state level, we’re now to the point where years of political indifference to funding the judicial branch has affected the basic operation of the courts and the services that we expect them to provide.

    This is a crisis that’s reached such endemic proportions that Chief Justice John Roberts made it a focus of last year’s state of the judiciary report, where he made the case that the federal courts were already being as cost-effective as they could possibly be, and warned that “significant and prolonged shortfall[s] in judicial funding would inevitably result in the delay or denial of justice for the people the courts serve.”

    That scenario is already playing out in state and local courts across the country.

    The effect of over a billion dollars of cuts in the last four years has been nothing short of devastating to the Los Angeles Superior Court system. Court officials plan to shutter a dozen courthouses and make an indeterminate number of staff layoffs. The only thing these courthouses will be used for now is for collecting traffic fines and administrative functions. The actual business of dispensing justice will be triaged at the remaining courthouses in the county, “where certain types of cases are heard at each remaining courthouse.”