Jed Rakoff: Why you won't get your day in court

[Winehole23]

Over the past few decades, ordinary US citizens have increasingly been denied effective access to their courts. There are many reasons for this. One is the ever greater cost of hiring a lawyer. A second factor is the increased expense, apart from legal fees, that a litigant must pay to pursue a lawsuit to conclusion. A third factor is increased unwillingness of lawyers to take a case on a contingent-fee basis when the anticipated monetary award is modest. A fourth factor is the decline of unions and other institutions that provide their members with free legal representation. A fifth factor is the imposition of mandatory arbitration. A sixth factor is judicial hostility to class action suits. A seventh factor is the increasing diversion of legal disputes to regulatory agencies. An eighth factor, in criminal cases, is the vastly increased risk of a heavy penalty in going to trial.


For these and other reasons, many Americans with ordinary legal disputes never get the day in court that they imagined they were guaranteed by the law. A further result is that most legal disputes are rarely decided by judges, and almost never by juries. And still another result is that the function of the judiciary as a check on the power of the executive and legislative branches and as an independent forum for the resolution of legal disputes has substantially diminished—with the all-too-willing acquiescence of the judiciary itself.

http://www.nybooks.com/articles/2016/11/24/why-you-wont-get-your-day-in-court/

[Winehole23]

In addition to being priced out of legal services, many Americans, even those who could afford a lawyer’s fee, are increasingly being forced to agree to one-sided contracts that prevent them from going to court altogether. For example, employees in an ever-growing percentage of the workforce must agree, as a condition of their employment, to contractual provisions that mandate that any legal disputes related to their employment be decided by a private arbitrator. Similarly, consumers who purchase goods or services online are increasingly subject to terms and conditions unilaterally drafted by the sellers’ lawyers that provide, among much else, that they must forgo their legal right to go to court, as well as their constitutional right to a jury, and instead have any and all disputes with the seller decided by a private arbitrator.


The private arbitrator not only is typically chosen and paid for by the employer or the seller, but also is free to proceed with little or no regard for the ordinary rules of evidence and to decide the dispute without giving any reasons for the decision.

[Winehole23]

These agreements foisted on employees and consumers are what the law calls “contracts of adhesion,” i.e., one-sided contracts imposed on weaker parties who have no realistic ability to negotiate, let alone contest the terms.

[Winehole23]

But a less-noticed example that actually affects many more average citizens is Congress’s increasing delegation of judicial powers and responsibilities to administrative agencies. Without any obvious support from the Constitution, these agencies, which are branches of the executive, then create their own internal courts, with procedures that bear little resemblance to those found in the judiciary. Furthermore, these administrative courts are run by judges who are selected by, paid by, and subject to review by the administrative agencies themselves.

[Winehole23]

While US citizens thus no longer have much real access to their courts in many civil and regulatory matters, you might think they would still have meaningful access in criminal cases, which are beyond the jurisdiction of any administrative court, let alone private arbitrators. But in reality, the real decisions in criminal cases are made by the prosecutors, not the courts. This is because, as a result of draconian and often mandatory penalties imposed by both Congress and most state legislatures during the last decades of the twentieth century, it is much too risky for any defendant, even an innocent one, to go to trial.


Instead, over 97 percent of those charged in federal criminal cases negotiate plea bargains with the prosecution, and in the states collectively the figure is only slightly less, about 95 percent.2 (http://www.nybooks.com/articles/2016/11/24/why-you-wont-get-your-day-in-court/#fn-2) In most cases, as a practical matter (and sometimes as a legally binding matter as well), the terms of the plea bargain also determine the sentence to be imposed, so there is nothing left for either a judge or a jury to decide. While the immediate result is the so-called mass incarceration in the United States that has rightly become a source of shame for our country, the effect can also be seen as just one more example of the denial of meaningful access to the courts even in the dire circumstances of a criminal case.

[FromWayDowntown]

No doubt. Very quietly, while everyone is screaming and yelling about the Second Amendment, the Seventh Amendment has been eroded. That's happened by legislators who are beholden to corporate donors and by judges who publicly make arguments that the civil justice system would be "more efficient" if it was run the way Wal-Mart operates its business.

All of that creates -- in civil disputes -- multiplication of arbitration in contexts that heavily favors repeat players (i.e., corporations) and leaves the individual who seeks a remedy with virtually no recourse if the arbitrator rules capriciously or without regard to rules of law. The corporation selects and pays the arbitrator, and the arbitrator knows that the best way to be selected and paid for the next time is to give the corporation the outcome it prefers. That same arbitrator has virtually no need for assuring that the plaintiff's concerns are even addressed, much less resolved favorably. And since there's little to no judicial review of the determinations of arbitrators, what the arbitrator says goes. (For an example, the Tom Brady/Deflategate appeal ultimately turned on the fact that the federal judge was basically powerless to reconsider the facts of the case after Goodell, the arbitrator, had decided what they were. That was true without regard to the actual validity of Goodell's factual findings in any objective sense).

Tort reform writ large has become the vehicle for statutorily embracing arbitration as the way to ensure that juries can't have much, if any, say in regulating business practices and remediating malfeasance. When that's coupled with other laws that simply limit or eliminate liability in particular circumstances, the entire effort is essentially lawsuit eradication.

[boutons_deux]

Any attempt to ban Federally forced arbitration will be blocked by the Repugs