Civil Justice: It Needs the Attention and It's Worth the Fight
[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.
Written By:Hans Bader On May 27, 2008 11:23 AM Written By:well On May 27, 2008 12:16 PM
Hans,
You can protest all you want, but that doesn't make it so. The Ledbetter decision is notorious because it defies both common court practice and common sense.
First, let's get rid of your bait and switch. The potential existence of other remedies under other statutes has nothing to do with the interpretation of this particular statute. This simply had to do with when one starts counting the clock for when one must bring a lawsuit.
Here's how the non-partisan Congressional Research Service described the issues at play:
"In Ledbetter, the female plaintiff alleged that past sex discrimination had resulted in lower pay increases and that
these past pay decisions continued to affect the amount of her pay throughout her employment, resulting in a significant pay disparity between her and her male colleagues by the end of her nearly twenty year career. Under Title VII, a plaintiff is required to file
suit within 180 days after an alleged unlawful employment practice has occurred.
Although the plaintiff in Ledbetter argued that each paycheck she received constituted a new violation of the statute and therefore reset the clock with regard to filing a claim, the Court [5-4] rejected this argument, reasoning that even if employees suffer continuing effects from past discrimination, their claims are time barred unless filed within the specified number of days of the original discriminatory act."
She filed within 180 days of finding out she was discriminated against. It is insane to believe that someone could file a lawsuit regarding discrimination when they did not know that it was occurring. The company prohibited Ledbetter from discussing her pay with her colleagues. It was only after someone gave her an anonymous note that she learned she had been financially mistreated all of those years.
And, in fact, that's how other laws regarding discrimination work. Why should age discrimination be treated differently than race discrimination when the statutes are virtually identical?
The answer is they shouldn't. The Court narrowly took away a legal remedy for this woman who was mistreated for over 20 years by narrowly construing a statute in a way that was inconsistent with the way the Court had construed similar statutes in such a way as to do violence to the intent of Congress and justice for Ms. Ledbetter.
Here's CRS on the dissent:
"treating the actual payment of a discriminatory wage as an unlawful employment practice would be more faithful to precedent, would better reflect workplace realities, and would be more consistent with the overall purpose of Title VII.
Specifically, the dissent argued that the Court’s holding was inconsistent with the result in Bazemore, contending that Bazemore recognized that paychecks that perpetuate past discrimination constitute a fresh instance of discrimination every time they are issued."
It's inaccurate to describe the "Supreme Court’s Ledbetter decision" as "severely limiting access to justice in pay discrimination claims."
Ledbetter v. Goodyear merely applied as written the short deadline contained in just one of the many federal and state laws banning pay discrimination.
It left perfectly intact the longer deadlines that apply for pay discrimination under other laws, such as the 3-year deadline under the federal Equal Pay Act, and the 4-year deadline under 42 U.S.C. 1981.
By contrast, the proposed Lilly Ledbetter Fair Pay Act would gut the statute of limitations by allowing retirees and employees to sue decades after alleged pay discrimination based on the fact that the alleged discrimination somehow influenced later pay or pension levels.
That would result in stale, unreliable claims being litigated, at the expense to the legal system and businesses that would otherwise create jobs.