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Motion Sickness: How the Supreme Court Erects Barriers to Justice

Monday, 17 June 2013 00:00 By Jeffrey McCord, Truthout | News Analysis

"The Guardian" or "Authority of Law" statue by James Earle Frasier in front of the United States Supreme Court building in Washington, DC."The Guardian" or "Authority of Law" statue by James Earle Frasier in front of the United States Supreme Court building in Washington, DC. (Photo: Mark Fischer / Flickr)

 

Although big Supreme Court cases involving gay marriage, corporate free speech and affirmative action gain more media and public attention, a proliferation of less noticed court decisions on seemingly arcane legal procedural rules are raising barriers to all American citizens seeking their day in court.

Behind the scenes, the court's changes to Federal Rules of Procedure lead to dismissal of cases brought by harmed consumers, investors and other citizens before the facts are permitted to be determined and weighed. Legal experts wonder if it is possible today for Americans of middle or lower incomes to achieve justice in federal courts.

"Justice-Seeking Ethos" Adrift

"A justice-seeking ethos" guided those who wrote the rules governing federal court procedures back in 1938, says emeritus Harvard Law professor Arthur R. Miller, who has taught procedural law for 50 years and recently looked back. "[They] believed in citizen access to the courts and in the resolution of disputes on the merits, not by tricks or traps or obfuscation."

Sadly, continues Professor Miller in a piece in the NYU Law Review, "We have strayed from that mandate; the drift is producing negative consequences for our civil justice system, as well as for some of the democratic principles underlying it."

The views of one man? Yes, but Arthur Miller's students have included Chief Justice John Roberts, former New York Governor and Attorney General Eliot Spitzer and former Senator Russ Feingold, among other leaders.  

Now, Chief Justice Roberts' law professor, who currently teaches at NYU, says the Supreme Court "seems to have its thumb on the scale favoring corporate and government defendants. . . [and impairing] access to the federal courts for many citizens."

How has this happened? Professor Miller recently told The New York Times: "The Supreme Court has altered federal procedure in dramatic ways, one step at a time, to favor the business community. . . [by] increased grants of summary judgment [dismissal of cases without considering their merits], tightening scientific evidence, rejecting class actions, heightening the pleading barrier and wholesale diversions into arbitration."

Court Using "Technicalities" to Deny People Fair Hearing

Professor Miller is hardly alone in emphasizing the corrosive effects of rule changes. As The New York Times pointed out: "The court's conservative majority is increasingly using legal technicalities to keep people from getting a fair hearing."  

Here are some of the decisions raising technical barriers to justice:

1. Bell Atlantic Corp. v. Twombly (2007) heightened the pleading requirement for initial complaints for federal civil cases by requiring plaintiffs to include enough facts to make it plausible - not merely possible or conceivable - that they can prove their allegations. As explained by dissenting Justice Stevens, (who was joined by Justice Ginzburg): "Does a judicial opinion that the charge is not 'plausible' provide a legally acceptable reason for dismissing the complaint? I think not. . . . [W]ithout so much as requiring [corporate defendants] to file an answer denying [the charges, the Twombly decision] permits immediate dismissal based on the assurances of company lawyers that nothing untoward was afoot.. . . [D]irecting that the case be dismissed without even looking at any . . . evidence marks a fundamental - and unjustified - change in the character of pretrial practice."

2. Ashcroft v. Iqbol (2009) cited Twombly in part to declare that former Attorney General Ashcroft and FBI Director Mueller were not liable for subordinates' discriminatory behavior, even if Ashcroft and Mueller created the discriminatory policies. And, the court elaborated on its new "plausibility" hurdle concocted in Twombly. From that day forward, whether allegations are plausible (and whether a case is killed) would depend upon a federal judge's "judicial experience and common sense." In addition to elevating one person's view of common sense to a legal test in all civil cases, the decision relieves these (and future) high officials of liability even though, according to Justice Souter's dissenting opinion, both Ashcroft and Mueller "conceded . . . they would be liable if they had 'actual knowledge' of discrimination by their subordinates and exhibited 'deliberate indifference' to that discrimination" as the plaintiff alleged and may have proven if the case had not been dismissed on pure technicalities.

3. Tellabs, Inc. v. Makor Issues & Rights, Ltd (2009) threw out a securities fraud class action lawsuit because the complaint did not go far enough to demonstrate the defendants plausibly intended to defraud their investors. Henceforth, Tellabs requires judges to ask if there may be innocent explanations for conduct such as alleged "cooking the books" or stealing missing moneys or securities. In his dissenting opinion, Justice Stevens illustrates the decision's absurdity: "[I]f a known drug dealer exits a building immediately after a confirmed drug transaction, carrying a suspicious looking package . . . [a judge should not need to debate] whether the suspect might have been leaving the building at that exact time for another unrelated reason."

To many observers it's obvious these decisions tilt the procedural playing field to favor corporate and government defendants. But they also hinder ordinary citizens seeking justice in less apparent ways. Such procedural hurdles considerably lengthen the time, and deepen the expense, of pretrial hearings and motions, favoring the party who has the deepest pockets - that is, corporate or government defendants.

And, the longer it takes for a case to be resolved, the less likely some plaintiffs - such as aging seniors defrauded of retirement funds - will see any outcome. Plaintiffs and witnesses die and/or their memories become fuzzy, or evidence disappears, as cases languish for years while technical arguments consume increasingly scarce judicial and costly advocates' time.

"Legal Elites" Making Courts "Unavailable"

Stephen R. Burbank, professor for the administration of justice at the University of Pennsylvania Law School, says legal "elites" are making courts "unavailable" to resolve everyday disputes:

"We know that elites have had, and still have today, enormous influence in determining the content of law and that legal elites have had, and still have today, enormous influence in determining the content of that special form of prospective law that we call the Federal Rules of Procedure. . . [T]he rules they secure for the high stakes, complex cases . . . become the rules for all litigation in federal court. The Cadillac process they enshrine helps to drive out of federal court those who can afford only a Ford."

So, where does that leave those of us who can only afford a Ford? Or Chevy?

Until Congress finds the backbone to override unjust decisions, or until the current Supreme Court composition changes, we're likely out of luck.

Copyright, Truthout. May not be reprinted without permission.

Jeffrey McCord

Jeffrey R. McCord is a former US Senate staffer and former Securities Investor Protection Corporation (SIPC) executive, and has been a freelance journalist for Dow Jones publications. McCord, whose academic work includes postgraduate studies at the London School of Economics and George Washington University, writes and edits The Investor Advocate, a pro-investor-protection blog.

 


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Motion Sickness: How the Supreme Court Erects Barriers to Justice

Monday, 17 June 2013 00:00 By Jeffrey McCord, Truthout | News Analysis

"The Guardian" or "Authority of Law" statue by James Earle Frasier in front of the United States Supreme Court building in Washington, DC."The Guardian" or "Authority of Law" statue by James Earle Frasier in front of the United States Supreme Court building in Washington, DC. (Photo: Mark Fischer / Flickr)

 

Although big Supreme Court cases involving gay marriage, corporate free speech and affirmative action gain more media and public attention, a proliferation of less noticed court decisions on seemingly arcane legal procedural rules are raising barriers to all American citizens seeking their day in court.

Behind the scenes, the court's changes to Federal Rules of Procedure lead to dismissal of cases brought by harmed consumers, investors and other citizens before the facts are permitted to be determined and weighed. Legal experts wonder if it is possible today for Americans of middle or lower incomes to achieve justice in federal courts.

"Justice-Seeking Ethos" Adrift

"A justice-seeking ethos" guided those who wrote the rules governing federal court procedures back in 1938, says emeritus Harvard Law professor Arthur R. Miller, who has taught procedural law for 50 years and recently looked back. "[They] believed in citizen access to the courts and in the resolution of disputes on the merits, not by tricks or traps or obfuscation."

Sadly, continues Professor Miller in a piece in the NYU Law Review, "We have strayed from that mandate; the drift is producing negative consequences for our civil justice system, as well as for some of the democratic principles underlying it."

The views of one man? Yes, but Arthur Miller's students have included Chief Justice John Roberts, former New York Governor and Attorney General Eliot Spitzer and former Senator Russ Feingold, among other leaders.  

Now, Chief Justice Roberts' law professor, who currently teaches at NYU, says the Supreme Court "seems to have its thumb on the scale favoring corporate and government defendants. . . [and impairing] access to the federal courts for many citizens."

How has this happened? Professor Miller recently told The New York Times: "The Supreme Court has altered federal procedure in dramatic ways, one step at a time, to favor the business community. . . [by] increased grants of summary judgment [dismissal of cases without considering their merits], tightening scientific evidence, rejecting class actions, heightening the pleading barrier and wholesale diversions into arbitration."

Court Using "Technicalities" to Deny People Fair Hearing

Professor Miller is hardly alone in emphasizing the corrosive effects of rule changes. As The New York Times pointed out: "The court's conservative majority is increasingly using legal technicalities to keep people from getting a fair hearing."  

Here are some of the decisions raising technical barriers to justice:

1. Bell Atlantic Corp. v. Twombly (2007) heightened the pleading requirement for initial complaints for federal civil cases by requiring plaintiffs to include enough facts to make it plausible - not merely possible or conceivable - that they can prove their allegations. As explained by dissenting Justice Stevens, (who was joined by Justice Ginzburg): "Does a judicial opinion that the charge is not 'plausible' provide a legally acceptable reason for dismissing the complaint? I think not. . . . [W]ithout so much as requiring [corporate defendants] to file an answer denying [the charges, the Twombly decision] permits immediate dismissal based on the assurances of company lawyers that nothing untoward was afoot.. . . [D]irecting that the case be dismissed without even looking at any . . . evidence marks a fundamental - and unjustified - change in the character of pretrial practice."

2. Ashcroft v. Iqbol (2009) cited Twombly in part to declare that former Attorney General Ashcroft and FBI Director Mueller were not liable for subordinates' discriminatory behavior, even if Ashcroft and Mueller created the discriminatory policies. And, the court elaborated on its new "plausibility" hurdle concocted in Twombly. From that day forward, whether allegations are plausible (and whether a case is killed) would depend upon a federal judge's "judicial experience and common sense." In addition to elevating one person's view of common sense to a legal test in all civil cases, the decision relieves these (and future) high officials of liability even though, according to Justice Souter's dissenting opinion, both Ashcroft and Mueller "conceded . . . they would be liable if they had 'actual knowledge' of discrimination by their subordinates and exhibited 'deliberate indifference' to that discrimination" as the plaintiff alleged and may have proven if the case had not been dismissed on pure technicalities.

3. Tellabs, Inc. v. Makor Issues & Rights, Ltd (2009) threw out a securities fraud class action lawsuit because the complaint did not go far enough to demonstrate the defendants plausibly intended to defraud their investors. Henceforth, Tellabs requires judges to ask if there may be innocent explanations for conduct such as alleged "cooking the books" or stealing missing moneys or securities. In his dissenting opinion, Justice Stevens illustrates the decision's absurdity: "[I]f a known drug dealer exits a building immediately after a confirmed drug transaction, carrying a suspicious looking package . . . [a judge should not need to debate] whether the suspect might have been leaving the building at that exact time for another unrelated reason."

To many observers it's obvious these decisions tilt the procedural playing field to favor corporate and government defendants. But they also hinder ordinary citizens seeking justice in less apparent ways. Such procedural hurdles considerably lengthen the time, and deepen the expense, of pretrial hearings and motions, favoring the party who has the deepest pockets - that is, corporate or government defendants.

And, the longer it takes for a case to be resolved, the less likely some plaintiffs - such as aging seniors defrauded of retirement funds - will see any outcome. Plaintiffs and witnesses die and/or their memories become fuzzy, or evidence disappears, as cases languish for years while technical arguments consume increasingly scarce judicial and costly advocates' time.

"Legal Elites" Making Courts "Unavailable"

Stephen R. Burbank, professor for the administration of justice at the University of Pennsylvania Law School, says legal "elites" are making courts "unavailable" to resolve everyday disputes:

"We know that elites have had, and still have today, enormous influence in determining the content of law and that legal elites have had, and still have today, enormous influence in determining the content of that special form of prospective law that we call the Federal Rules of Procedure. . . [T]he rules they secure for the high stakes, complex cases . . . become the rules for all litigation in federal court. The Cadillac process they enshrine helps to drive out of federal court those who can afford only a Ford."

So, where does that leave those of us who can only afford a Ford? Or Chevy?

Until Congress finds the backbone to override unjust decisions, or until the current Supreme Court composition changes, we're likely out of luck.

Copyright, Truthout. May not be reprinted without permission.

Jeffrey McCord

Jeffrey R. McCord is a former US Senate staffer and former Securities Investor Protection Corporation (SIPC) executive, and has been a freelance journalist for Dow Jones publications. McCord, whose academic work includes postgraduate studies at the London School of Economics and George Washington University, writes and edits The Investor Advocate, a pro-investor-protection blog.

 


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