Procedural Barriers to Court

  • May 19, 2010
    Guest Post

    By Sidney Shapiro, Member Scholar, Center for Progressive Reform, University Distinguished Chair in Law, Wake Forest University School of Law
    The Center for Progressive Reform (CPR) today released a white paper examining "plausibility pleading"-the Supreme Court's heightened pleading standard that plaintiffs must satisfy in order to bring their claims in federal court. The paper, Plausibility Pleading: Barring the Courthouse Door to Deserving Claimants, comes after the Court's decision one year ago this week in Ashcroft v. Iqbal that this standard applies to all types of federal cases. The Court first created this standard in Twombly v. Bell Atlantic, three years ago.

    Iqbal and Twombly will lead to the dismissal of meritorious cases, thereby weakening the civil justice system and making it more difficult to hold businesses or the government accountable for wrongful actions. Increased dismissals will also deprive federal regulators of vital information needed for improving the regulations that protect people and the environment. Our paper therefore calls on Congress to pass legislation to reverse these decisions.

    The pleading standard plays an important role in civil litigation. Would-be plaintiffs unable to draft a complaint that satisfies the pleading standard aren't able to bring their case before a judge or jury in federal court. If the pleading standard is too lenient, too many non-meritorious cases will be able get into court, clogging up the federal judiciary. But if the standard is too high, meritorious cases will be terminated early, denying justice to deserving plaintiffs.

    For nearly seventy years, the Federal Rules of Civil Procedure -- the set of rules that govern the conduct of federal civil litigation -- charted an effective middle course by requiring plaintiffs to assert a set of facts that explained how the defendant had harmed them. This approach left the evaluation of the pleading's factual sufficiency to the discovery stage, permitting a plaintiff to use discovery to obtain information relevant to the case.

  • May 12, 2010
    Guest Post

    By Jay Austin & Bruce Myers, Senior Attorneys, Environmental Law Institute

    Big business versus the little guy. The Ninth Circuit running amok. The specter of "frankencrops." All of these tropes -- some familiar to Supreme Court-watchers, one more novel -- were potentially in play last month when the Court considered Monsanto v. Geertson Seed Farms, its first case dealing with federal regulation of genetically modified organisms (GMOs). Yet the oral argument found the justices preoccupied with fine points of jurisdiction, administrative law, and equity, suggesting that their actual ruling may turn out to be a narrow one.

    Geertson arose from a Bush Administration decision to deregulate "Roundup Ready" alfalfa, Monsanto's proprietary strain that has been engineered to resist Monsanto pesticides. Mr. Geertson and other conventional farmers sued the Animal and Plant Health Inspection Service under the National Environmental Policy Act (NEPA), claiming the agency failed to produce an environmental impact statement (EIS) that fully considers the risk of cross-pollination between GMO crops and conventional crops. If such contamination occurs, the plaintiffs' GMO-free status -- and thus their entire business model -- could be in jeopardy.

  • 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.