Constitutional Law

Civil Justice: It Needs the Attention and It's Worth the Fight

byy Andrea Batista Schlesinger, Executive Director of The Drum Major Institute for Public Policy.
[Editor’s note: DMI recently released this report on principles to guide the civil justice system, and sponsors this blog.]

The next time someone says that the biggest challenge facing our legal system is how to reduce frivolous lawsuits, you can just point that person to the newspaper. There the headlines will demonstrate that the real problem facing our legal system is the attack on regular people’s legal rights.

Take the Supreme Court’s Ledbetter decision severely limiting access to justice in pay discrimination claims, and Congress’ failure to restore this important right through legislation. Or Jamie Leigh Jones’ tooth-and-nail fight to be able to sue her former employer, KBR, for confining her to a shipping container after she reported being sexually assaulted by a coworker. Or the battle for nursing home patients’ rights and safety—a battle between patients who just want the legal tools to fight abuse and neglect, and the industry which wants to remain protected from the lawsuits that punish ineffectively-regulated safety violations and patient abuse.

The civil courts allow regular people to fight for what they believe is fair and just, but attacks on our access to the courts threaten to take this away. The Drum Major Institute’s recent civil justice report highlights the importance of access to the courts, identifies six challenges to the civil justice system, and discusses some progressive ideas for addressing those challenges. They are summarized below:

1. We need to fill the gap in legal services so that Americans entwined in critical civil claims like those involving housing, sustenance, or child custody, have access to a lawyer, even if they cannot afford one.

2. We must restore access to the courts for consumers, employees, and others who are often tricked or compelled by lack of alternatives into signing binding mandatory arbitration clauses, which take away their right to sue a corporation in the public courts.

3. We must combat inappropriate federal agency preemption, where courts are upholding federal regulatory agency rules that remove state residents’ right to sue corporations, leaving victims of defective or unsafe products with little or no recourse for their injuries.

4. Judges must exercise more discretion in approving confidentiality agreements ­?- settlement loopholes that corporations use to keep important information hidden from the public. In the past, these have been used to hide information about asbestos, tobacco, and faulty automobiles, causing deaths and serious injuries.

5. We must increase patient safety to reduce rising health care costs, rather than limiting the compensation that deserving victims of malpractice receive for their injuries.

6. The federal government must attack the problem of under-regulation of the insurance industry, which has compromised consumers’ ability to hold insurance companies accountable for systematically denying valid claims.

Because the challenges to the legal system affect us all, we need an extended national dialogue about how to make "and justice for all" an attainable ideal. The ideas discussed in our report are meant to help further the conversation—a conversation that should involve public policy groups, legal professionals, and progressive thinkers in the broader social justice community as well.

Think that’s too lofty? Well, look at the headlines again—they also give us hope. Jamie Leigh Jones’ fight for her day in court was ultimately victorious, patient safety and the effects of tort reform on legitimate malpractice claims are getting more scrutiny, and we are also seeing evidence that the courts are still an appropriate place to fight discrimination. So as we identify the challenges to our civil justice system, we must also focus on solutions that enhance its strengths and make the system work better for Americans with important legal claims.

Full post as published by ACS Blog on May 27, 2008 (boomark / email).