Obama's Department of Justice.

The law, lawyers, and the court.
Jan. 6 2009 2:44 PM

Revival of Justice

What Obama's DoJ appointees should do first.

Elena Kagan.
Elena Kagan

The Obama administration is taking over the Department of Justice with a distinguished roster of top appointments —Elena Kagan as solicitor general, David Ogden as deputy attorney general, and Dawn Johnsen (a Slate contributor) to head the Office of Legal Counsel. Now that we know who will help attorney general nominee Eric Holder lead the department, it's time to think about priorities. One focus is whether the new DoJ will reverse course on the Guantanamo detainees, whom lawyers for the Bush administration did their utmost to keep out of court.

But the detainees aren't the only ones who have had a hard time getting a fair hearing. During the last eight years, government lawyers have also been in the forefront of cutting off access to courts for civil litigants. The new Department of Justice can begin by taking a different tack in some pending cases. A more profound change, however, would be for the DoJ to dedicate a group of its staff lawyers to the task of removing barriers to court for all sorts of people.

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The department need not start from scratch. In the late 1970s, President Jimmy Carter tapped a Virginia law professor, Daniel Meador, to run what was then called the Office for Improvements in the Administration of Justice. While the name was boring, the output was not.

For example, under Meador's leadership, the Justice Department proposed a consumer class-action bill. The idea was that if more than 200 people had small claims (less than $300) against violators of federal laws (for example, about the sale of securities), the DoJ would act as their lawyer, filing a kind of class action in court. If it won, the DoJ would distribute the proceeds.

While Meador's proposed statute did not become law, it offers a model of what DoJ lawyers could be about today. When Reagan followed Carter, however, the Office for Improvements became the Office of Legal Policy and turned to shepherding nominees for judgeships through confirmation hearings. Some of the judges appointed with the help of OLP under Bush I and II have done their best to limit access to courts by cutting back both rights and remedies. OLP has also done more of that directly, by supporting bills with great-sounding names (the Personal Responsibility in Food Consumption Act or the Protection of Lawful Commerce in Arms Act) that were written to stop victims of obesity or gun violence from bringing claims to court.

The result is that consumers, investors, employees, and tort victims have less access to court than their counterparts did 30 years ago. If your cell phone and credit card are like mine, they come with a tiny-print contract that includes clauses waiving your right to bring lawsuits. Such contracts mandate instead the use of a dispute resolution program selected by the company that sold the product. (The companies suggest you keep these items in a "safe place"; to preserve one of mine, I published a copy in a law-review article.)

Those consumer contracts also typically ban "class action arbitrations." Consumers with claims for small amounts of money—like the people Meador tried to help 40 years ago—have to go it alone. Without the ability to aggregate claims, lawyers can't afford to do the factual and legal research to show violations of federal statutory rights, such as truth-in-lending obligations, which require disclosures of loan terms.

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