Access to Justice

  • April 5, 2017
    Guest Post

    by Nat Stern, John W. & Ashley E. Frost Professor, Florida State University College of Law

    The ability of politicians to utter falsehoods with legal impunity is evident today to perhaps an unprecedented degree. Less appreciated is that the overwhelming majority of judges in America qualify as politicians in the basic sense that they are chosen through some form of popular election. In the case of candidates for judicial office, however, nearly half of states codes contain a “misrepresent clause” barring deliberately false factual statements by judicial candidates.

    The basis for this ban is understandable and even admirable. In contrast to legislators and elected executive officers, judges are expected to serve as detached and impartial arbiters of the law. Dishonest campaign tactics may then be viewed as impairing the administration of justice, tarnishing the public image of the judiciary or even revealing a disqualifying character trait. Nevertheless, the misrepresent clause—as opposed to generally applicable bans on certain kinds of dishonesty like defamation and fraud—probably violates the First Amendment. This conclusion derives mainly from the confluence of three Supreme Court doctrines: stringent protection of political speech, application of this doctrine to restrictions on judicial campaign speech and refusal to regard false expression as categorically unprotected.

    It is a commonplace that unhindered political speech is essential to self-government and therefore lies at the heart of the First Amendment. Thus, the Supreme Court has repeatedly affirmed the privileged place of political expression in the hierarchy of First Amendment freedoms. Nor has the Court left any doubt that political campaign speech falls squarely within this protection. Accordingly, the Court has subjected restrictions on political expression to rigorous scrutiny.

  • March 31, 2017
    Guest Post

    by Dan Karon, Karon LLC

    A German auto manufacturer lies about its cars’ emissions and swindles billions. Too bad. An energy company cooks the books and steals millions of people’s retirement money. So sad. A chemical company dumps toxic waste into a river and kills thousands of children downstream. Pound sand.

    If Congress passes H.R. 985—the Fairness in Class Action Litigation Act—these horrifying scenarios will be just the beginning. The bill reads like a Chamber of Commerce wish list because it is. It will kill all class actions and will sacrifice the valuable, necessary and commendable work that consumer attorneys have performed for decades. It will gut human-rights cases, eviscerate employment-abuse cases and kill defective-drug and products cases. Its carnage is too expansive to list here. The bill will leave nothing but an unpoliced wasteland, where unaccountable corporations will exploit their new world order, knowing that no one can stop them.

    If this all sounds too horrible to be real, I am sorry—it is. Despite all the scares that the class-action bar has agonized through, this congressional blow not only will crush people’s right to justice, but also will decimate plaintiffs’ and defense firms overnight. If you think I am kidding, read the bill.

    How did we get here? Simple. Bad plaintiffs’ lawyers brought too many bad cases. But these sewer lawyers neither resemble nor represent the plaintiffs’ bar—lawyers who risk comfort, safety, and security every day by committing to a contingent-fee model, where the upside of bygone days no longer exists. We do this because it is important, because we care, and because we want to make a difference. These motivations may seem silly or unimaginable to lawyers who have never done this type of work, who have never risked their practice, and who favor getting paid per hour to getting paid perhaps. Plaintiffs’ work is not for everybody.

  • August 10, 2016
     
    Since discontinuing “Stop and Frisk” policies, which disproportionately target African and Latino Americans, New York City’s crime rate has decreased dramatically, reports Brentin Mock at City Lab.
     
    Adam Liptak at The New York Times cites a new study showing criminal defendants appearing in front of the Supreme Court are less likely to have expert counsel than any other type of defendant. 
     
    J. Lester Feder and Nikki Tsukamoto Kininmonth explain in a recent article on BuzzFeed how, even after a 2003 law allowed for individuals to change their legal gender, doctors in Japan are using an antiquated and oppositional diagnosis to help Transgender people.
     
    According to an article by Elizabeth Olson in The New York Times, the American Bar Association is considering an amendment to its model rules of professional conduct that would prohibit harassment and discrimination by practicing lawyers.  
  • May 5, 2016
    Guest Post

    by Paul Bland, Executive Director, Public Justice

    *This post first appeared on the Huffington Post.

    Banks and payday lenders have had a good deal going for a while: They could break the law, trick their customers in illegal ways, and not have to face any consumer lawsuits. Armed by some pretty bad 5-4 Supreme Court decisions, they could hide behind Forced Arbitration clauses (fine print contracts that say consumers can’t go to court even when a bank acts illegally), even when it was clear that the arbitration clauses made it impossible for a consumer to protect their rights.

    But the free ride is coming to an end. After an extensive study, that proved beyond any doubt how unfair these fine print clauses have been for consumers, the CFPB is taking a strong step to reign in these abusive practices. In a new rule, the CFPB says banks can no longer use forced arbitration clauses to ban consumers from joining together in class action lawsuits. That means banks can no longer just wipe away the most effective means consumers often have for fighting illegal behavior.

    This is a common sense rule that will go a long way in combating some of the financial industry’s worst practices.

  • May 5, 2016
    Guest Post

    by Julie Wilensky, Director of the California Office of the Civil Rights Education and Enforcement Center (CREEC) and member, National Employment Lawyers Association (NELA)

    On March 26, the North Carolina General Assembly convened a special legislative session to preempt a local ordinance passed by the city of Charlotte, which had amended its antidiscrimination law to explicitly include protections based on sexual orientation and gender identity. The state legislature introduced and rapidly passed HB 2, North Carolina’s extraordinarily broad “Bathroom Bill,” which Governor Pat McCrory signed into law the same day. The focus of HB 2, and much of the debate and dialogue surrounding it, is about forcing transgender people to use sex-segregated restrooms according to the sex listed on their birth certificate, instead of the restrooms corresponding to their gender identity. HB 2 also prohibits local governments in North Carolina from enacting their own anti-discrimination protections based on sexual orientation and gender identity and from establishing minimum wages other than for the local government’s own employees.

    Advocates have filed suit challenging aspects of HB 2 as violating the U.S. Constitution as well as Title IX, a claim vindicated by the Fourth Circuit’s April 19 decision in G.G. v. Gloucester County School Board. That decision confirms that Title IX, which prohibits sex discrimination in educational programs receiving federal funding, protects the rights of transgender students to use sex-segregated facilities consistent with their gender identity. Quite simply, HB 2 requires North Carolina’s local governments and schools receiving federal funding to discriminate against transgender and gender nonconforming people in violation of federal law.

    HB 2 also takes the extreme step of expressly revoking the right for workers to bring state-law discrimination claims in state court North Carolina Equal Employment Practices Act. For many years, the North Carolina courts have recognized a common law right to file suit for wrongful termination based on the public policy under the Act. Taking this right away is an unprecedented and extreme step. While HB 2 states that North Carolina’s Human Relations Commission will have the authority to “investigate and conciliate charges of discrimination,” state officials have not provided guidance on how this will be implemented, and this is no substitute for a worker being able to file a lawsuit in state court.