The Supreme Court recently announced that it was closing its front door. The court meant that literally: Instead of entering by way of the grand staircase on the western plaza, visitors are routed to a side entrance for weapons screening.
Next Tuesday, Congress will hold a hearing about another facet of access: whether to build more federal courthouses. Judges have sought to add space, but congressional investigations have questioned the need for it. One study looked at seven federal districts and found that the lights were on in courtrooms only about half the time. Of every 100 civil cases filed each year, less than two go to trial. And strikingly, despite the judiciary's prediction in 1995 that by now, more than 600,000 cases would be in federal courts, filings have been almost flat for the decade, averaging about 325,000 civil and criminal cases a year.
Closed doors, dark courtrooms, and fewer filings capture a good deal about the current state of federal law. A long list of recent technical rulings (about pleadings, immunity, and private rights of action) now limit access by making it hard to get into court.
One series of particularly distressing decisions prevent many consumers and employees from bringing lawsuits against companies and employers. If your cell phone and credit cards are like mine, they come with tiny-print contracts that have mandatory arbitration clauses. These form contracts bar you from going to court even if you claim that your rights under federal statutes have been violated. For example, if you think your credit card company failed to disclose some information, you can't file a "truth-in-lending" lawsuit. Instead, that contract authorizes companies to require use of a "Dispute Resolution Program" it selects.
And it is not only people buying goods and services to whom these kinds of contracts are handed. If you apply for a job, the application may also require employees to waive their rights to court before they even get an interview. Some contracts also ban "class action arbitrations"—so that a consumer or employee with a claim in a low dollar amount has to go it alone. Without the ability to join with others, it is hard to find lawyers to take the case.
Many countries don't enforce these contracts, which are described as "adhesive" because you are stuck. People with little bargaining power have no choice but to sign what a company puts before them. Once, the U.S. Supreme Court had that view too. For decades, the court gave a limited reading to the Federal Arbitration Act, passed in 1925 to encourage commercial arbitrations. The court concluded that the act did not, for example, bar stock purchasers from suing their brokers just because of a form waiver signed before a problem even existed. Employees, too, could bring individual discrimination claims to court, even if their unions had entered into collective bargaining agreements.
But in a series of recent decisions, the justices upheld these one-sided contracts, as long as the company-selected private arbitration program was an "adequate" alternative. In 2001, the court ruled (5 to 4) that an employee alleging discrimination under California law had to go before an arbitrator because he'd signed a job application. In 2009, the Court concluded (5 to 4) that employees under a collective-bargaining agreement lost their individual rights to go to court for age discrimination claims, even though they had not personally signed the agreement.
And about a month ago, the Court closed another door. A panel of three arbitrators looked at a form maritime contract that did not mention class arbitrations. They ruled that a class antitrust arbitration (following a criminal investigation for price fixing in shipping) could proceed. But five justices held that a silent contract ruled out that group-based process.
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