Procedural barriers to court

  • May 4, 2010
    In a new Issue Brief distributed by ACS, Colorado University law school professor Scott A. Moss examines the current Supreme Court and its changing view toward litigation.

    Once, Moss writes, the high court viewed "litigation as an important tool for redressing grievances, deterring wrongdoing, and spurring social reform." But the justices who once joined in advancing that view are no longer on the bench, "and now the Court regularly issues rulings based on a more negative view of litigation - a view that stresses litigation's burdens on defendants rather than its importance to plaintiffs, to society, and to the vindication of policies Congress enacted."

    Moss explores "the trend toward more hostility and less support for litigation is noticeable, and the Court's hostility to litigation disproportionately skews outcomes in favor of defendants, most commonly businesses sued by those claiming deprivations of various rights and protections, such as workplace anti-discrimination rights, consumer rights, wage rights, and protection against unlawful competition."

    Is the trend likely to continue? Moss believes so especially if the high court, and lower federal courts, continue to include justices with very similar professional backgrounds.

    The tougher stance toward litigation and the "pro-defense perspective," is better explained by the current justices' professional backgrounds. The problem, Moss maintains, "is that however varied their ideologies and philosophies, the Justices largely share a negative perception on civil litigation - a shared perspective that may reflect their largely homogenous professional background and experiences." Lower federal courts, Moss writes, also reveal a "similar homogeneity, with little change in the professional profile of the judicial nominees of the Clinton administration and the George W. Bush administration."

    The Issue Brief, "Judicial Hostility to Litigation and How It Impairs Legal Accountability for Corporations and Other Defendants," is available here.

  • April 28, 2010
    Guest Post

    By Elizabeth Wydra, Chief Counsel, Constitutional Accountability Center (CAC)

    Cross-posted at CAC's Text & History blog 

    From Monday's oral argument in Rent-A-Center v. Jackson, it appears that corporate America, and apparently some Justices on the Supreme Court, believe that there are basically only two situations in which a court can invalidate a broad, mandatory, pre-dispute arbitration agreement signed by an applicant for a job with a corporate employer as a condition of being hired. First, arbitration might not be required if the would-be-employee signed the agreement only because the employer put a gun to her head or got her drunk and had her sign under the influence. Second, the courthouse doors might be open if it were discovered that it was not the now-employed person's signature on the agreement, but rather the handwriting of "Joe Bananas," some weirdo (courtesy of Justice Breyer's imagination) who has been running around impersonating the poor employee.

    It should be noted that these fanciful hypotheticals discussed at oral argument do not cover the most frequent, real world "gun-to-the-head" scenario faced by job applicants, in which their only "choice," if they want the job, is to agree to arbitrate, on the employer's terms, any and all future disputes -a "choice" characterized by Chief Justice Roberts as "economic inequality or whatever." Only the literal gun-to-the-head scenario will suffice, apparently; not being free to assert your right to access the courts because it means you won't be hired and maybe won't be able to support your family, does not.

    While the hypotheticals were plentiful at argument, the actual facts of the case before the Court were little discussed. The petitioner, Antonio Jackson, signed an agreement when he was offered a job at Rent-A-Center that required him to give up his right to access the courts in the event of a future claim against his employer, and instead submit any and all future claims to a private arbitrator. Jackson did not have a real choice about whether to sign this agreement; he was given no opportunity to negotiate its terms, and the failure to sign would have meant he would not get the job. The terms of the agreement were lop-sided in favor of Rent-A-Center, particularly with respect to fees and discovery procedures. Moreover, corporate employers like Rent-A-Center are repeat players in the arbitration system and their continued patronage keeps arbitrators in profitable business, which means that arbitrators may well be predisposed in the employers' favor.

  • April 27, 2010

    More than a year after oral argument, a narrowly divided federal appeals court affirmed certification of the largest class action in American history. In Dukes v. Wal-Mart, more than one million potential plaintiffs are suing the retailer for gender discrimination. 

    "The lawsuit, brought in 2001, accuses the retailer of systematically paying women less than men, giving them smaller raises and offering women fewer opportunities for promotion," The New York Times reports. "The plaintiffs stressed that while 65 percent of Wal-Mart's hourly employees were women, only 33 percent of the company's managers were." 

    Considering the case en banc, the U.S. Court of Appeals for the Ninth Circuit sided with the plaintiffs by a vote of 6-5. Casting the deciding vote was Clinton appointee Judge Susan Graber, who wrote in concurrence, "If the employer had 500 female employees, I doubt that any of my colleagues would question the certification of such a class. Certification does not become an abuse of discretion merely because the class has 500,000 members."

    The Recorder reports

    Judge Michael Daly Hawkins wrote Monday's majority 9th Circuit opinion, joined by Graber and Judges Stephen Reinhardt, Raymond Fisher, Richard Paez and Marsha Berzon. All were appointed by Democrats.

  • April 27, 2010
    Guest Post

    By Glenn Sugameli, Staff Attorney, Defenders of Wildlife's Judging the Environment 

    "Conservatives' court-packing ploy," an op-ed by Professor William Marshall, explained how Republicans'

    "judicial activism" mantra has been inordinately effective in shaping the debate over judicial nominations. It has allowed them to push through deeply conservative nominees [and] changed the course of American jurisprudence from one based on advancing principles of equality and liberty to one centered on protecting wealth and privilege. The replacement of Justice Stevens stands as an opportunity for Obama to begin the process of returning our understanding of the Constitution to its essential moorings.

    E.J. Dionne Jr.'s Washington Post column described how "the conservative intellectual offensive" has transformed

    our discussion of the judiciary. That is why the coming clash over President Obama's next Supreme Court nominee ... must be the beginning of a long-term effort to expose how radically conservatives have altered our understanding of what the Supreme Court does and how it does it. Above all, it should become clear that the danger of judicial activism now comes from the right, not the left. It is conservatives, not liberals, who are using the courts to overturn the decisions made by democratically elected bodies ....

    Accounts of right-wing judicial activism have focused on the Roberts' Court's opinions, and properly so. For example, my April 13th ACSblog guest post explained how laws that protect people and the environment are "threatened by activist Supreme Court Justices with agendas that result in plurality and bare majority opinions that are overly broad, unwarranted, and ignore or overturn established precedent."

  • April 22, 2010
    Guest Post

    By David Carroll, Director of Research, National Legal Aid & Defender Association

    Utah statutes require some measure of quality in the provision of right to counsel services mandating that counties provide "timely representation by competent legal counsel" who must provide "undivided loyalty" to clients and have the "investigatory resources necessary for a complete defense." But there is no statewide commission or regulatory department to ensure that these minimum standards are met, let alone standards related to caseload controls, attorney qualifications or training.

    On top of that, Utah is one of only two states in the country that does not contribute any state funding for the right to counsel (Pennsylvania is the other). Collectively, Utah counties spend only $5.22 per capita for the right to counsel, or, 57% below the national average ($12.09). Only Missouri ($5.20) and Mississippi ($4.15) spend less.

    Counties are allowed to create and administer any delivery system they desire and most have either contract or assigned counsel systems. For years, national advocates - including NLADA - have reported that only two of Utah's 29 counties have established staffed public defender offices (Salt Lake and Weber Counties). But in an effort to save money, Weber County (Ogden) defunded the public defender office in 2009 and moved to individual flat fee contracts in which private attorneys take an unspecified number of cases (the county saved over $100,000).

    Today, the Salt Lake Tribune reports on what those changes mean to clients. In a move similar to the Weis v. The State case out of Georgia, prosecutors in Utah have made a motion to remove the attorneys of a client facing the death penalty because they are no longer under contract with the county to handle trials. Appointed 21 months ago when they were employed staffed public defenders, the two attorneys are arguing that removing them now would be prejudicial to their client. The would-be replacements for the client have never handled a death penalty case.

    The ACLU of Utah is intervening in the case with a hearing set for May 7. The ACLU reports that other systemic deficiencies in Utah include attorneys carrying twice as many felonies as recommended under national standards -- in addition to their own private caseloads. Excessive caseloads force attorneys to regularly waive preliminary hearings and fail to file motions because of a lack of time.