Procedural Barriers to Court

  • July 13, 2010

    The nation's indigent defense system is woefully inadequate and calls out for a strong federal response, writes Professor Cara H. Drinan in an Issue Brief released today by ACS. Drinan's Issue Brief, available here, proposes federal legislation to help overcome a "national crisis in indigent defense services." At the moment, Drinan asserts, many states are far from meeting their obligations under the Constitution's Sixth Amendment.

    During the 2010 ACS National Convention, Stephen B. Bright, president and senior counsel for the Southern Center for Human Rights, participated in a panel discussion that focused on increasing a federal role in improving indigent defense. Following the discussion, Bright talked with ACSblog about indigent defense services nationwide, calling the situation extremely lopsided in the favor of prosecutors. He compared the situation to "literally like the New York Yankees," playing a little-league softball team. "In many parts of the country we don't have a system," Bright said. In many states, there are no public defenders offices and instead judges appoint lawyers, often overworked, to represent poor defendants. In those cases, Bright continued, the lawyers loyalty is often to the judges who appoint them and not to defendants.

    Bright said greater independence, more structure and resources are needed to turn the situation around. Bright's interview is below. Video of the panel discussion, "The Federal Role in Improving Indigent Criminal Defense," is available here.

  • June 25, 2010
    Guest Post

    By Alan B. Morrison, Lerner Family Associate Dean for Public Interest & Public Service, George Washington University Law School
    Like a brakeless train careening down a mountain, the Supreme Court delivered another blow to those seeking to avoid having their claims shunted off into arbitration when it held in Rent-a Center v. Jackson (No. 09-497, June 21, 2010) that the company's contract with its employee gave the power to the arbitrator, instead of a court, to decide when the terms of the arbitration were unconscionable. The 5-4 decision is significant in its own right (and wrongly decided as well), but that outcome is hardly surprising given the single-mindedness with which a narrow majority of the Court has pushed the Federal Arbitration Act of 1925 (FAA) into places that its authors could never have foreseen.

    The FAA was passed by Congress to overcome decisions that made agreements to arbitrate unenforceable, even between two sophisticated businesses, the only ones that were seeking to use arbitration instead of the courts in those days. In recent years, the Court has embraced arbitration with a passion and upheld arbitration clauses that applied not only to contract claims, but to claims arising under federal laws of all kinds, including those barring discrimination in employment on grounds of race, gender, age, and other protected categories. Moreover, although the FAA contains an exception for contracts involving employees working "in commerce," the Court narrowly construed this exemption so that the employment agreements of workers who, under the prevailing interpretation of the Commerce Clause in 1925, could not constitutionally have been reached then, had their claims forced into arbitration so long as they, or as the Court ruled in a subsequent case, their union, "agreed" to have those claims arbitrated. The Court also rejected attempts by states to preclude arbitrations in certain situations, or impose conditions on their use, beyond those generally applicable all contracts, such as the defense of unconscionability.

  • June 23, 2010
    In an overlooked opinion this week the conservative wing of the Supreme Court raised the bar on the ability of workers' to seek justice from the federal courts, writes the Constitutional Accountability Center's (CAC) David H. Gans. The majority decision in Rent-a-Center, West v. Jackson, Gans writes, "is extremely important, and its holding will likely affect thousands of Americans, another ruling in a long campaign by corporations to supplant judicial review with arbitration."

    In Rent-a-Center, the conservative wing of the high court turned away an employee's challenge of an arbitration agreement that he was required to sign before gaining employment. The former employee, Antonio Jackson, lodged a federal lawsuit against Rent-a-Center West arguing that he had been subject to racial discrimination and that the arbitration agreement should not prevent his legal action from proceeding.

    Gans writes:

    In Rent-a-Center, in a sharply divided 5-4 ruling, the conservative majority of the Supreme Court reached out to create a new rule of pleading that makes it difficult for hard-working Americans to seek justice in the federal courts to enforce their federal rights, including the right to be free of racial discrimination in employment.

    In his speech before 2010 ACS National Convention, Sen. Al Franken (pictured) took a sharp look at the conservative wing of the Supreme Court and its increasing affinity for corporate interests.

    "The Roberts Court," Franken said, "has systematically dismantled the legal protections that help ordinary people find justice when wronged by the economically powerful."

    Franken then ticked off a number of high court decisions that he said have "stripped shareholders of their ability to" recover money from firms that have defrauded them, and that have "given employers more leeway to deny workers their pension benefits."

    In the recent Iqbal case, Franken noted, the conservative high court majority "made it harder for everybody to get their day in court."

    See video or download a transcript of Franken's speech here.

  • 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.