Employees sometimes don't fare any better. Job applications contain similar kinds of waivers. Applicants promise that if hired, they won't sue for any kind of claim—even discrimination—and instead will use a dispute resolution system designated by the boss.
Consumers and employees have argued that federal statutes promoting arbitration ought not to be read to let one-sided contracts cut them off from court before a problem has even arisen. Before the 1980s, that interpretation prevailed. But then, in a series of rulings (several of them 5-4), the Rehnquist Court upheld these form contracts despite the lack of bargaining behind them.
On another front, just two years ago, in a case called Twombly, the Supreme Court made it harder for all kinds of claims to get to court. The decision gave trial judges discretion to look at the problems outlined by plaintiffs in their initial complaint—and, without going any further, to dismiss the case as just not "plausible." The Bush administration is now relying on Twombly before the Supreme Court in an effort to keep out of court Javaid Iqbal, who was locked up in the wake of 9/11 and seeks damages for the violence he says was done to him while he was incarcerated. *
What can a new DoJ do about the last eight years of shutting the courthouse doors? In addition to filing new briefs in ongoing cases, the department should revive the old Office for Improvements in the Administration of Justice. Let's rename it the Office for Access to Justice and give it a mandate to examine exactly what court doors have closed for civil litigants and whether and how to pry them open.
For consumers or employees, the new OAJ should draft and then lobby for new statutes (such as those already offered by Sens. Feingold, Leahy, and Grassley) that make contract provisions unenforceable if they waive rights of access to court before people know that a conflict exists. The OAJ could also ask Congress to revise federal laws to reverse the Supreme Court's ruling in a series of recent employment discrimination cases (like that of Lily Ledbetter). Also to be addressed are a host of immunities that the Supreme Court has fashioned to protect government officials and private contractors to whom the government has outsourced work.
The OAJ should also look beyond the federal courts, because, important as they are, most of the action is elsewhere. While 350,000 civil and criminal cases are filed annually in federal courts, 20 million to 40 million cases (depending on what you count) are presented each year to state judges. But the states are in a fiscal nose dive; New Hampshire, for example, just imposed a moratorium on civil trials to save money. In addition, more than 500,000 people appear before federal agencies, like the Social Security and Veterans administrations. And in the 1990s, Congress defunded the one organization—the Administrative Conference of the United States—that did research on the needs of the more than 4,000 administrative judges operating under federal agencies' auspices.
The DoJ needs to devote its staff resources to increasing access to justice across the board—from federal trial courts to the local courts in New England to the agencies that decide so many employment claims. OLP has more than a dozen staff lawyers who could be redeployed for this purpose. The current divisions within the Department of Justice are based on areas of law ("civil," "criminal," "civil rights"). One group inside the DoJ ought to focus, instead, on a big and basic idea: that the courts are for all of us.