Access to Justice

  • April 21, 2016
    Guest Post

    by Joseph M. Sellers and Miriam R. Nemeth. Mr. Sellers is the head of the Civil Rights and Employment practice group at Cohen Milstein Sellers & Toll, PLLC. Ms. Nemeth is an associate in that practice group. In May, Cohen Milstein will be opening an office in Raleigh, North Carolina that will be headed by the Honorable Martha Geer, who is leaving the North Carolina Court of Appeals to take on that role.

    North Carolina has justifiably been pilloried in recent weeks for enacting legislation that requires public school students and state employees to use the bathrooms reserved for their biological sex, regardless of the gender with which they identify. In many ways, this legislation resurrects memories of racially segregated restrooms that were mandated by law until the middle of the last century. Motivated by the same kind of fear and unjustified stereotypes as before, the segregation this time is directed at transgender people.

    The bill’s requirement that state employees and public school students use restrooms designated for their sex at birth, regardless of the gender with which they identify, is bad enough. But the bill also limits protections against sex discrimination to one’s “biological sex,” which further reinforces state-sponsored hostility to transgender people. Although such a limitation may not impose the same daily inconvenience or humiliation as the restroom restriction, it wholly exempts transgender people from the state’s legal protection. Like the bigotry of racism, this officially sanctioned discrimination rests on unfounded stereotypes and fears about transgender people. Nowhere else do we require employees and students who wish to use public restrooms to announce what their genitalia look like.

    Even more troubling and little noticed, however, this legislation also gutted the state’s civil rights laws. Enacted as the Public Facilities Privacy and Security Act, a wholesome title that masks its pernicious effect, this legislation withdrew a private right for anyone (not just transgender people) to challenge in the state’s courts any form of discrimination in employment and public accommodations. Part III specifically provides that the state’s existing statutory protections—including the language added by House Bill 2—do not “create or support a statutory or common law private right of action and no persons may bring any civil action based upon the [discrimination prohibitions] expressed therein.” House Bill 2, Sess. Law 2016-3, Pt III. In that one clause, the legislation abolished North Carolina’s common law cause of action for wrongful discharge based on discrimination, which had been recognized by the courts since 1989.

  • February 19, 2016

    by Nanya Springer

    As part of its Access to Justice series, ACS on Thursday hosted Director of the Consumer Financial Protection Bureau Richard Cordray for a discussion of how forced arbitration and other anti-consumer measures are harming average Americans. Cordray, the agency’s first director, has overseen the birth and growth of the CFPB, which sprung directly from the financial crisis of 2007-2008. During the ensuing years, the cumulative wealth of middle-income Americans fell drastically, and many families saw their net worth cut in half.  The CFPB, he noted, was forged to ensure “consumer financial markets work by making rules more effective, by consistently and fairly enforcing those rules, and by empowering consumers to take more control over their economic lives.”

    A burgeoning threat to consumers is mandatory arbitration agreements. Cordray explained that originally, arbitration was used primarily “in commercial disputes between businesses that bargained with each other to create tailored contracts; it was rarely used in disagreements between businesses and consumers.” Over the last two decades, however, “banks started including arbitration clauses in their consumer contracts, requiring any disputes or disagreements to be resolved through private arbitration.” He noted that the attorneys who advised these banks specifically pointed out that arbitration clauses can be used to block class action lawsuits.

    To investigate the impact of increasingly common arbitration clauses, the CFPB undertook the most extensive study of consumer finance arbitration ever conducted, finding that tens of millions of consumers are subject to at least one mandatory arbitration clause—and most don’t even know it. Most importantly, the CFPB found that “arbitration clauses restrict consumers’ relief in disputes with financial service providers because companies are using them to block class proceedings in any forum – whether court or arbitration.”

  • January 29, 2016
    Guest Post

    by Ross Eisenbrey, vice president, Economic Policy Institute

    *This post originally appeared on

    Employers are increasingly forcing employees to give up their right to sue in court and to accept private arbitration as their only remedy for violations of statutory and common law rights. Private arbitration can forbid class actions, limit damages, allow the employer to choose the arbitrator, and cut off appeals, resulting in a system unfairly tilted in the employer’s favor. As Stone and Colvin find, employees are much less likely to win in mandatory arbitration than in federal court: employees in mandatory arbitration win only about a fifth of the time (21.4 percent), whereas they win over one-third (36.4 percent) of the time in federal courts.

    Differences in damages awarded are even greater. The typical award in mandatory arbitration ($36,500) is only 21 percent of the median award in the federal courts ($176,426). While there are additional factors to consider in comparing the two systems, at the outset it is important to recognize that in a simple comparison, mandatory arbitration is massively less favorable to employees than are the courts.


  • January 12, 2016
    Guest Post

    by John Paul Schnapper-Casteras, Special Counsel for Appellate and Supreme Court Advocacy at the NAACP Legal Defense and Educational Fund, Inc. Follow him on Twitter @jpscasteras.

    Chief Justice John Roberts’ yearly report on the state of the federal judiciary begins with a colorful, if curious, historical allusion to the once-prevalent practice of settling disputes (and petty grievances) by dueling to the death.  Addressing a new set of procedural rules that could limit how litigants discover information before trial, the Chief Justice declared that changing today’s inefficient litigation practices is akin to eliminating dueling in America.

    Perhaps the Chief's choice of analogies was inspired by his recent viewing of the hit Broadway musical about Alexander Hamilton, who was needlessly killed in a duel with Aaron Burr.  The show is a highly acclaimed hip-hop interpretation of the life of Hamilton and of the founding of our nation, so I can understand how its infectious score of compelling songs – like “Ten Duel Commandments” – might have influenced the Chief’s thinking.  

    Although the invocation of dueling to discuss civil procedure rule changes is, of course, tongue-in-cheek, there is something about this analogy that seems particularly ill-fitting.

    For one, the Chief’s suggestion that “a change in culture left dueling by the wayside” does not tell the whole story.  Archaic practices like dueling were eliminated, in no small measure, by the creation of a court system that fairly addressed a broad range of disputes, opened access to such tribunals, and channeled everyone towards those institutions.  Indeed, the Chief Justice cites an 1838 booklet which made this very point: dueling was expected “where there is no tribunal to do justice to an oppressed and deeply wronged individual.”  This expectation has been borne out by the fact that, in recent decades, courts – and federal courts in particular – have proven essential to vindicating the civil rights of racial minorities and protecting the constitutional protections of a whole range of individuals.  Common-sense recognizes this too: for example, when two neighbors have a minor property dispute, they normally forego dueling not just because it’s culturally passé, but also because they have ready access to a judicial resolution – thanks to fora like small claims court and friendly legal procedures that lower the barriers to entry.

    And herein lies the irony.  The new rules praised by the Chief may erect barriers to individuals in civil rights cases and were adopted in a process that has drawn criticism for a lack of inclusiveness and transparency.  Specifically, the new “proportionality” language in Rule 26 addresses a critical component of litigation known as discovery, whereby parties exchange information about each other in order to flush out the facts of the case and facilitate the resolution of legal disputes.  For years, litigants could generally request information “reasonably calculated to lead to the discovery of admissible evidence.”  But the recently revised rules declare that such requests must also be “proportional to the needs of the case.”  Because that seemingly small change could seriously restrict access to information in civil rights suits and employment discrimination cases, the NAACP Legal Defense & Educational Fund, Inc. testified against it.  Of course, questions remain about how narrowly the new “proportionality” rules will be implemented and interpreted and whether the Report’s hyping of them (i.e., they’re a “big deal”) may actually be “overkill.”  Nevertheless, controversy has emerged about whether the rollout of this rule, as well as unofficial supplementary guidelines, have been unduly influenced by certain corporate voices and/or blurred lines between the private sector and official, judicial processes. 

    In addition, as others have pointed out, there is particular irony in the Chief Justice so lavishly praising the “meticulousness” of the rulemaking process as a model of inclusiveness and professional deliberation when the Supreme Court bypassed this very process and sweepingly altered the way in which people can bring lawsuits under the federal rules, through cases like Twombly and Iqbal

    Enlarging access to justice has proven essential to eliminating brutish practices like dueling – along with state-mandated segregation and bans on interracial marriage – and remains as important today as ever.  Yet the very rules the Chief lauds may turn out to constrict rather than preserve access to essential information in civil rights lawsuits and beyond.  When we make it harder for people to fully air and address (not just speedily dismiss) disputes through the litigation process, we undermine public confidence in the system and we promote, rather than discourage, extra-judicial means of dispute resolution.  The judiciary, and the procedural rules that govern it, can and should encourage everyone to resolve controversies and vindicate rights within the legal system fairly, efficiently – and, of course, without dueling.

  • January 4, 2016
    Guest Post

    by Brooke D. Coleman, William C. Oltman Professor of Teaching Excellence, Seattle University School of Law

    When the Federal Rules of Civil Procedure were adopted in 1938, they came with a set of forms that were meant to illustrate and, importantly, suffice under the rules. These forms, according to the original rule makers, were key to the success of the Civil Rules because they would be the “pictures” that would accompany the rules. It is worth remembering that the ethos behind the adoption of the 1938 Civil Rules as a whole was to eliminate needless technicalities and barriers to access. Simplifying the process so that the merits could be reached was the goal. The forms were an important part of reaching that goal because a litigant could use the form, and as long as the form was used correctly, courts had to accept it.

    As of December 1, 2015, Rule 84 and the Official Forms were erased from the Civil Rules forever. As I have written here and here, there are a number of reasons to believe that this was a bad idea. (Others have also argued as much here and here.) The Civil Rules Committee argued that the forms were out of date and that the Committee wanted to get out of the form-making business. The easiest solution was to eliminate the forms altogether. As a consolation for eliminating the forms, the Committee stated that the Administrative Office of the Courts would publish sample forms for federal court litigants. It appears that this consolation prize is indeed in the works.

    In his year-end report for the Court, Chief Justice John Roberts explained that some new forms had already been drafted by “a group of experienced judges” assembled by the Administrative Office of the Courts. These new forms can be found here. Chief Justice Roberts explained further that the “outdated forms” of the past would be replaced with these “modern versions that reflect current practice and procedure.”