Guest Post

  • April 3, 2017
    Guest Post

    by Alexandra D. Lahav, Professor of Law at the University of Connecticut and Author of In Praise of Litigation

    The Senate Judiciary Committee is considering a bill – passed along partisan lines in the House – that threatens the way Americans have enforced the law for seventy five years. The bill is called the Fairness in Class Action Litigation Act (FICALA) and its results are likely to strike a major blow against class actions and aggregate litigation. 

    The recent hearings on Supreme Court nominee Neil Gorsuch highlighted the threat that current lawmakers pose to the administrative state – the apparatus that has, since the New Deal, allowed the executive to pass regulations that support our voting rights, clean air and water, workplace safety and more. But in the discussions one thing seems to have been missing: a major way that regulations are enforced in the United States is by individuals and groups bringing lawsuits. Congress has enabled these lawsuits by creating private rights of action in areas as diverse as employment discrimination and internet privacy.

    For the last thirty years, the Supreme Court has been eroding these regulations by creating barriers to suit: forced arbitration has been repeatedly upheld (even when it goes against state contract law), requirements for bringing a claim have increased and collective actions are harder to certify. If most of the enforcement of the law is left up to us, through the courts, the process of shutting the courthouse door also means that regulations will not be enforced. Now Congress is taking its turn to shut the courthouse door.

  • April 3, 2017
    Guest Post

    *This piece originally appeared on The Huffington Post.

    by Christopher Kang, ACS Board Member and National Director, National Council of Asian Pacific Americans

    The Senate Rules provide a 60-vote threshold for Supreme Court nominees to be confirmed, and it appears less and less likely that Neil Gorsuch will be able to meet that threshold. If he cannot, Senate Republicans will face a choice—and yes, it is their choice—as to whether they should unilaterally change the Senate Rules through the nuclear option, so that Supreme Court nominees can be confirmed with just a majority vote.

    Most of the arguments against the nuclear option have focused on institutional interests for both the Senate and the Supreme Court. Retaining the 60-vote threshold would preserve the unique nature of the Senate that encourages broader consensus and less extremism. There also is a concern—on both sides—that reducing the confirmation threshold to a simple majority could lead to more ideological Supreme Court Justices and a more polarized Court.

    Those are compelling reasons in themselves, but there also is a far more practical question that Republicans must consider: How will Senate Democrats respond to this historic power grab? If Democrats follow the Republican response in 2013, it will freeze the Senate for thousands of hours, preventing Republicans from advancing their agenda.

    In November 2013, Senate Democrats invoked the nuclear option to lower the confirmation threshold for lower court and executive branch nominees. In response, over the next 13 months, Republicans forced Democrats to file cloture on 154 nominees, and they forced 131 cloture votes.

  • March 31, 2017
    Guest Post

    *This piece originally appeared on The Huffington Post.

    by Christopher Kang, ACS Board Member and National Director, National Council of Asian Pacific Americans

    Last week, the Washington Post recommended that Democrats should make a deal on Gorsuch by not filibustering his nomination and instead preserving the 60-vote threshold for a future nominee. Yesterday, reports surfaced about efforts to find a last-ditch deal.

    Here are five reasons that a deal does not make sense for Democrats.

    First, Judge Gorsuch’s record. I agree with the Washington Post that “the national interest requires that Democrats judge Mr. Gorsuch ‘on the merits.’” Republicans and Democrats agree that, on the merits, Judge Gorsuch’s record demonstrates that he is a judge in the mold of former Justice Scalia. As Justice Scalia once noted about his own confirmation, “I was known as a conservative then, but I was perceived to be an honest person. I couldn’t get 60 votes today.” The same could be said of Judge Gorsuch.

    In fact, academic studies predict that Judge Gorsuch would be even more conservative than Justice Scalia. According to one study, if confirmed, Judge Gorsuch “might be the most conservative justice on the Supreme Court.” Another forecast that Judge Gorsuch would be the most conservative other than Justice Thomas—and that he is one of the most conservative among the candidates hand-selected by the ideologically-driven Federalist Society and Heritage Foundation. A third report looked at campaign contributions before becoming a judge and estimated that Judge Gorsuch is more conservative than 87% of all other federal judges.

    Given Judge Gorsuch’s judicial ideology and record, if Democrats do not insist on a 60-vote threshold now, then when would they?

  • 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.

  • March 30, 2017
    Guest Post

    *This piece originally appeared on The Huffington Post

    by Christopher Kang, National Director, National Council of Asian Pacific Americans

    Many Senate Democrats believe that a Supreme Court nominee should be within the mainstream and therefore able to earn the support of 60 Senators. Given the stakes, this hardly seems unreasonable, but Republicans now claim that a 60-vote threshold for judicial nominees would be unfair. Here are the 12 times they insisted on a 60-vote threshold for Obama’s lower court nominees—and, really, once Republicans demanded that a trial court judge in Rhode Island needed 60 votes, shouldn’t Democrats be able to ask for the same for the highest court in the land?

    • Senate Republicans filibustered D.C. Circuit nominee Caitlin Halligan (twice) and 9th Circuit nominee Goodwin Liu, even though both had majority support.
       
    • Senate Republicans filibustered 10th Circuit nominee Robert Bacharach of Oklahoma, even though he was supported by both of his Republican home-state Senators, Inhofe and Coburn. His nomination was not controversial (as evidenced by his 93-0 confirmation eight months later) but Republicans set an arbitrary cut-off date for confirmations during the 2012 presidential election year—similar to their historic mistreatment of Judge Merrick Garland’s nomination to the Supreme Court last year.