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.
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.
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.