A Civil Justice System That Works for Working People

• Publication year: 2017

A Civil Justice System That Works for Working People

John Vail

A CIVIL JUSTICE SYSTEM THAT WORKS FOR WORKING PEOPLE

John Vail^*

Serial wrongdoers have treated jury trials the same way dogs treat fire hydrants. Over the last thirty years, they have led a campaign, sometimes public, more often quiet and stealthy, to make it progressively harder for working people to get, or to mete out, justice. Too few people have noticed.

Serial wrongdoers—generally, large corporations—have sought to make it more difficult to get into court and, if you get in, to make it more difficult to get cases before juries, the one decision-making institution they have not been able to buy. Their efforts have worked. Lay people decide cases increasingly less often. Power has been transferred from citizens to elites.

An administration that cares more about working people than about elites can wrest power from the uppity class, return it to jurors, and reopen the courts to real people.

Abundant academic literature chronicles the phenomena I describe here.¹ I want to focus, in plain terms, on certain mechanisms by which access to courts,

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and the power of juries—both of fundamental Constitutional importance² —have been diminished.

The Woeful State of Court Funding

I will begin with the obvious and will not belabor it: the courts have been starved of funding. National debates center on the federal courts, but the state courts handle about 95 percent of all cases and their financial condition are grim.³

The federal courts have been caught in the political gridlock, the Senate notably refusing to take any action on a Supreme Court nominee but less noticeably dawdling in considering nominees to the lower courts. Resultantly, currently there are 103 judicial vacancies⁴ creating 38 "judicial emergencies," situations in which access to justice is gravely impaired.⁵

Nominally, lack of access affects everyone equally. But it ain't so. Limiting access hurts people who seek to hold wrongdoers accountable and insulates wrongdoers from responsibility. Thus, in general, corporations—who are serial wrongdoers—benefit. But sometimes corporations want to sue other corporations. How have they dealt with that without losing insulation? One method: business courts. "There are today in the United States more trial courts that hear business disputes primarily or exclusively than at any previous moment in the nation's history."⁶ Just as racial segregationists created an alternative school system, liability segregationists created an alternative justice system. Even more creatively, though, they did it with state money.

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The Diminished Power of Juries

A trial before a jury was once an object of community focus and a source of entertainment. As county seats became larger, it lost that luster. But it remains an exercise in direct democracy, the one institution in America where, without intimidation, truth is spoken to power, and where power is judged by citizens. This political function of the jury famously was celebrated by Tocqueville.⁷ Nebraska's highest court, barring exclusion from juries on the basis of race, emphasized the leveling influence of citizens knowing that whosoever you may judge, by them you shall be judged.⁸ Judge William Young notes that the jury trial "is the New England town meeting writ large. It is as American as rock 'n' roll."⁹ The jury trial continues to be acclaimed in rhetoric, but not in practice.

Jury trials are disappearing,¹⁰ which is to the benefit of serial wrongdoers. The trend correlates with incremental changes in law that, cumulatively and quietly, have made access to juries more difficult. The Supreme Court effectively has re-written the Federal Arbitration Act, making it a tool for oppressing consumers, employees, and small businesses.¹¹ Under the Supreme Court's reading of the statute, if you agreed with an illegal bookmaking operation to arbitrate disputes about illegal payouts, an arbitrator, and not a court or a jury, must resolve the dispute.¹² An arbitration agreement that bans small businesses, each with relatively small disputes, to band together to challenge fees charged by American Express, is enforceable, even if it bans with 100% certainty the small businesses from getting relief to which they clearly would have been entitled in court.¹³ The Act was written as a set of procedural rules for the federal courts, with the purpose of enforcing arbitration agreements between silk-stocking businesses.¹⁴ It was not meant to be outcome-determinative, nor was it meant to deprive working people of their right to have serial wrongdoers answer to juries.

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More subtly, the Supreme Court has made procedural law less friendly to working people. Calling yourself an expert in procedure is a sure way to avoid invitations to social events. But Felix Frankfurter noted, "The history of American freedom is, in no small measure, the history of procedure,"¹⁵ and, more prosaically, John Dingell, a savvy legislator who served six decades in the House, would offer to let opponents write the substance of bills: "[Y]ou let me write the procedure, and I'll screw you every time."¹⁶ The...