Over the past several decades, a conservative-led campaign has eviscerated the ability of Americans to have their day in court. Victims of corporate malfeasance, medical malpractice, unsafe products, illegal working conditions, civil rights violations, and environmental pollution have seen their ability to hold perpetrators accountable undermined and the courtroom doors shut.

The Roberts Court has accelerated this charge, siding with the Chamber of Commerce and other pro-corporate groups in rewriting federal pleading standards to make it harder to get to trial, narrowing consumers’ and workers’ ability to band together in class actions, overturning decades of settled law to allow corporations to force consumers into mandatory arbitration, and undermining crucial federal labor, civil rights, and environmental protections. Legislative efforts backed by the same pro-corporate groups also have cut away at plaintiffs’ rights to receive full compensation for harm done to them and to hold defendants accountable. Alliance for Justice has stood with consumer, labor, environmental, and other groups in fighting back against the efforts to keep Americans from having their day in court. AFJ tracks Supreme Court and lower court decisions affecting the legal rights of everyday Americans, educates the public on efforts to narrow those rights, and works with our allies to advocate for progressive legislation and courts that will respect the access to justice that is so fundamental to American values.

Forced Arbitration

Arbitration is a process in which a private firm is hired to settle a dispute without going to court.  It was designed as a voluntary alternative to litigation among corporate equals.  It has been twisted today into a tool by powerful corporations to force consumers and employees to surrender their right to hold corporations accountable for wrongdoing before an impartial judge.  For example, Carnival Cruises uses forced arbitration – a fact that may hinder the passengers on the recent nightmare cruise the Triumph. It’s not just consumer issues. Arbitration is spreading to employment contracts, threatening to make it nearly impossible for workers to sue over race, sex or age discrimination, and to contracts between small businesses and their corporate suppliers.

Generic Drugs

The Supreme Court also has stepped in to protect drug manufacturers.  In the case of PLIVA v. Mensing, a case AFJ profiled in Unequal Justice, the Court insulated makers of generic drugs from liability when their products do terrible harm to individuals.

Tragically, in 2013, a few months after her ninth surgery, Camille Baruch, who is featured in this portion of the documentary, and pictured above, died.  The cause of death is not yet known, but her mother notes that Camille’s immune system was compromised by the drugs she had to take as a result of the illnesses described in the video.  Ms. Baruch was 19.  AFJ is supporting efforts to undo the damage from this ruling. The Food and Drug Administration has proposed new rules that would go a long way toward undoing the damage done by the Supreme Court majority in Pliva v. Mensing.  We’ve joined several other consumer and patients’ rights groups in support of these rules.

Class Actions

When millions of people are cheated out of relatively small amounts per person, each can’t go through a cumbersome legal process to get her or his money back.  Similarly, when thousands of people face racial or sex discrimination by a big corporation it’s extremely difficult to fight the company one-by-one.  The only hope for justice – and the only real deterrent to fraud – is a class action, which allows individuals to band together to bring their common claims against big corporations.  But corporate special interests have been waging war against class actions. Forced arbitration is among their most effective weapons.  Among the others:

  • The Supreme Court imposed new restrictions on the right of employees facing discrimination to band together.  In Wal-Mart v. Dukes, a case discussed in AFJ’s documentary Unequal Justice, the Supreme Court majority prevented more than a million women from banding together to pursue their case against the discriminatory pay and promotion practices of Walmart management.   The Court significantly raised the barriers to such suits in the future.

  • Federal legislation passed by a Republican-majority Congress and signed by President George W. Bush forced some class actions traditionally handled by state courts into federal court, where big business thought it would get a friendlier reception.  Because of the shortage of federal judges – another result of Republican obstruction – pushing these cases into federal court also promotes delay.

Federal Rules of Civil Procedure

The issue may be obscure but proposed changes to the “rulebook” for civil lawsuits brought in federal court would make it even harder for Americans to stand up for their rights in court.

Asbestos Victims

Asbestos is a carcinogen that has killed hundreds of thousands of people, in large part because the asbestos industry ignored and lied about the risks of asbestos for decades. In the 1990s, Congress passed legislation designed to ensure at least some compensation to victims even when companies reorganized under the bankruptcy code to free themselves of their asbestos liability. It established trust funds to compensate victims while those companies reorganized.   But now, Republicans in the House of Representatives are proposing to tie the process up in bureaucratic knots – what’s been aptly called a “delay ‘till they die” strategy.

Medical Errors

If you want to get a sense of how many Americans die because of medical errors in a single year, take the number of American combat deaths in the Korean War.[1]  Then add the number killed in combat during the Vietnam War.[2]  Then add in the Iraq War.  Then Afghanistan.[3]  Only when you combine those figures do you roughly equal the 98,000 killed in just a single year by medical error in the United States. But instead of trying to curb the errors, Congressional Republicans are trying to curb the rights of patients who sue for malpractice after being victimized by those errors.   During the 112th Congress, they proposed legislation that would have set a limit of $250,000 on awards for pain and suffering – no matter how much a patient has suffered and no matter how severe the pain.  That burden will fall hardest on women victims of sexual or reproductive harm, pregnancy loss, and sexual assault injuries.  Often they can be compensated only through pain and suffering awards.  In 2013, Senate Republicans tried again to limit the rights of malpractice victims through an amendment to the Senate budget bill.  Fortunately, the amendment failed.

Equal Access to Justice Act

The Equal Access to Justice Act (“EAJA”) was enacted in 1980 to encourage private parties to pursue legitimate claims against the government, and to deter inadvisable or inappropriate official action, including legal action, by the government, given its high cost for the non-governmental party.  Seniors, veterans, small businesses, and groups representing consumer or environmental interests have used EAJA to bring claims against the government that otherwise would not have been brought because litigants lacked the resources to pay for attorneys and the recovery was too low to cover the costs of litigation and compensate victims.  Pending legislation would destroy EAJA’s ability to protect the interests of everyday Americans. Over the last two years EAJA has faced several legislative attacks, which have been primarily led by Rep. Cynthia Lummis (R-WY). During the beginning of the 112th Congress, Rep. Lummis introduced a rider to the Continuing Resolutionto fund the government through FY ‘11 which would have cut all attorney’s fees payments under EAJA, gutting the legislation.  With minimal debate, the House passed the rider 232-197, largely along party lines.  Thankfully, the Senate did not include the rider in its version of the legislation and the rider was not included in the final legislation. Rep. Lummis has recently introduced new legislation, the Government Litigation Savings Act, which is similarly dangerous, and Sen. Barrasso (R-WY) has introduced accompanying legislation in the Senate.

The Sunshine in Litigation Act

Lawsuits often uncover information that is vital to others in similar situations.  For example, a single automobile accident may reveal a design or manufacturing defect that exists in thousands of other vehicles.  The recently-revealed tragedies involving some General Motors cars, in which defects led to at least 13 deaths, are a case in point.

If this information is locked up by a secrecy order entered to settle the single case, others may be injured in accidents caused by the same defect – injuries that might have been prevented had the information become public. The Sunshine in Litigation Act would curb the ongoing abuse of secrecy orders in federal courts by requiring judges to consider public health and safety before granting a protective order or sealing court records and settlement agreements.  AFJ has joined other groups concerned with health, safety and consumer rights in supporting this bill.


[1] CBS News, How Many Americans Died in Korea? http://www.cbsnews.com/2100-507_162-202741.html
[2] National Archives, Statistical Information about Fatal Casualties of the Vietnam Warhttp://www.archives.gov/research/military/vietnam-war/casualty-statistics.html
[3] Icasualties.org, last viewed March 20, 2013.

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