Don't let Microsoft clip our rights

 The computer giant is trying to force us into forced arbitration

Microsoft, the company that gave us Vista, Ctrl-Alt-Delete and Clippy, has something in store for us that’s even worse.  The company has been phasing in forced arbitration clauses in its “services agreement.”

That means if you are harmed by a Microsoft product or service, you can’t stand up for your rights in court.  Instead, you have to take your case to an arbitrator hired by Microsoft.  Arbitrators do not need to be lawyers or follow precedent, yet their word is nearly always final and unappealable.  One study found that such arbitrators rule for the businesses that hire them 94 percent of the time.

Microsoft also won’t let you band together with others the company has wronged and bring a class-action suit – often the only way to stop a corporation from cheating millions of consumers.  The latest version of the services agreement makes this ban even more strict.

One can see why Microsoft might be fond of forced arbitration.  In a 2003 e-mail, company founder Bill Gates used the following terms to describe what it was like to use one of his own products:

 disappointed, backwards, unusable, totally confusing, strange, pathetic, completely odd, weird, scary, crazy, slow, garbage, not usable, crapped up, crap, absolute mess, craziness, terrible.

Microsoft joins a lengthening list of big businesses that are taking away our rights when we’re harmed by their products and services.  Public outrage forced General Mills to back down.  But odds are you’ve clicked through at least one contract with a forced arbitration clause in the fine print. They are showing up everywhere, from credit card contracts to the Instagram terms of use.  And in the case of Microsoft, using one of the affected products means you’ve consented to surrendering your rights.

Perhaps the best indicator of just how bad a deal forced arbitration is for consumers is the sneaky way big businesses force it on us.

Take Microsoft’s latest email announcing the changes.  “Our users' needs are at the center of everything we do,” says the happy little email. “That's why we are updating the Microsoft Services Agreement.”  But there’s no mention of forced arbitration in the email itself.  And there’s no mention of it in the FAQ that supposedly offers the “highlights.”

No, you have to click on the link to the fine print and scroll down to Section 10 before you find out what Microsoft is taking away.  If forced arbitration is so great, why does it have to be forced?  Why not offer it on a voluntary basis?  And why aren’t companies bragging about it instead of tucking it away in those long, long “agreements” that few of us have the time to read?

There is a solution.  The Arbitration Fairness Act would put an end to these outrages.  If you don’t want your rights “clipped” by the company that gave us Clippy – or by all the other corporations on the forced arbitration bandwagon – tell your Members of Congress to pass the Arbitration Fairness Act.

 Read more about forced arbitration

AFJ: Roberts Court again expands corporate power to deny access to justice

Alliance for Justice President Nan Aron released the following statement today in response to the Supreme Court decision in American Express Co. v. Italian Colors Restaurant:

Today, a majority of the Supreme Court expanded the power of major corporations to deny Americans access to justice.  In upholding American Express’s forced arbitration clause, the Court’s majority has denied small businesses harmed by large corporations’ monopolistic practices the ability to stand up for their rights.  American Express admits this will deny plaintiffs any hope of compensation for valid legal claims, but, as Justice Kagan wrote, the majority says:  “Too darn bad.”

It is the latest in a series of decisions that make it significantly more difficult to hold big businesses accountable for their actions. Congress must act to ensure that the rights our laws secure for all Americans are not subsumed by arbitration clauses and a corporate-friendly Court.

Read more about Forced Arbitration

Read more about the Roberts Court’s bias toward big business 

House should defeat "delay till they die" act

Alliance for Justice President Nan Aron issued the following statement today concerning the vote by the House Judiciary Committee in favor of the so-called Furthering Asbestos Claim Transparency Act.

With their penchant for Orwellian language, Republicans on the House Judiciary Committee have reported to the full House legislation they call the Furthering Asbestos Claim Transparency (FACT) Act.  But were there a truth-in-labeling requirement for legislation, it would be called the “delay till they die act” – because the real intent of this bill is to delay justice for asbestos victims until even more of them die.

As AFJ and other organizations explain in a letter released this week, since at least the 1930s asbestos companies and their insurers have been denying responsibility for the millions of deaths and injuries knowingly caused by this deadly product.  The companies hid the dangers posed by asbestos exposure, lied about what they knew, fought against liability for the harms caused, tried to change the laws that held them responsible, and to this day, they still fight against banning asbestos in the U.S.

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.  This bill would make it more difficult for victims to get compensation by forcing the trusts to use their limited resources to respond to asbestos defense lawyers’ fishing expeditions, and by delaying chronically ill victims’ day in court during those fishing expeditions.

The asbestos industry is not interested in transparency. The bill places lengthy and burdensome new reporting requirements on victims seeking compensation for asbestos-related illnesses, but it has no comparable requirements for the asbestos companies who were responsible for the harm.  The legislation is one-sided, unfair and unnecessary.  It should be defeated.

Read the letter
Read our previous post on this bill
Read more about access to justice

Arbitration Fairness Act would reopen courthouse doors for millions of Americans

AFJ released this statement today on the reintroduction of the Arbitration Fairness Act:

Coast Guard delivers supplies to the
"cruise from hell"

Federal legislation introduced on May 7 to ban the increasingly common practice of forced arbitration “is urgently needed to reopen the courthouse doors to millions of Americans,” according to Alliance for Justice President Nan Aron.

Aron commended Sen. Al Franken (D-Minn.) and Rep. Hank Johnson (D-Ga.) for reintroducing the Arbitration Fairness Act, which restores Americans’ rights to have their day in court. Those rights have been undermined by the increasing use of forced arbitration and a series of recent Supreme Court decisions, most notably AT&T Mobility v. Concepcion.

“From cell phone purchases to nursing home agreements, to gaining employment, consumers and employees are being forced to accept arbitration clauses – and to potentially cede their civil and labor rights – in every aspect of their lives.

Sen. Al Franken

Rep. Hank Johnson

“For example, anyone who saw the pictures of conditions aboard the Carnival Cruise ship Triumph after it was disabled by a fire knows why it was dubbed ‘the cruise from hell,’” Aron said.  “But those passengers may have a hard time suing.  When they bought their tickets, there was a forced arbitration clause in the fine print.”

Under forced arbitration, consumers who buy defective products or are overcharged for a service are barred from taking their cases to court.  Instead, they must use a private arbitration firm chosen and paid for by the business itself.  Forced arbitration clauses also often ban class-action suits, which allow individuals to band together to bring their common claims.

In addition to Carnival, the photo sharing service Instagram uses forced arbitration – and some fear Instagram’s parent company, Facebook, may be next.  The practice is also spreading to employment contracts, threatening to make it nearly impossible for workers to sue over race, sex or age discrimination.

“Having a dispute settled by arbitration is like playing a baseball game in which the other team hires, fires – and pays – the umpires,” Aron said.  She noted that a study of top arbitrators for one major arbitration firm found that they rule for the corporations that hire them 93.8 percent of the time.

“The forced arbitration system gives corporations a free pass to break the law,” Aron said.  “The Arbitration Fairness Act would revoke that free pass.”

Read more about forced arbitration

● An overview of forced arbitration 
● AFJ’s report Arbitration Activism
● AFJ reports on AT&T Mobility v. Concepcion
● Press release from Rep. Johnson
● Press release from Sen. Franken
● Letter of support from AFJ and more than 40 other organizations

Republican-led House Subcommittee attacks plaintiffs’ access to court

On March 13, the House Subcommittee on the Constitution and Civil Justice held an oversight hearing to examine “litigation abuse,” the new buzz-word for “tort reform” – which, in turn, is a euphemism for denying access to justice.

Rep. Trent Franks (R-AZ)

The Subcommittee focused on ways to limit so-called “forum shopping,” cy pres settlements (discussed further below), and financing civil litigation. However, Rep. Jerrold Nadler (D-NY), the ranking member, criticized the panel on its failure to recognize that in many cases, large corporate defendants are engaged in actual wrongful and negligent activity that harms individuals whose only recourse is through the courts.

First, Chairman Trent Franks (R-AZ) framed “forum shopping” as the practice by which plaintiffs-attorneys choose the most favorable jurisdiction. However, Rep. John Conyers, Jr. (D-MI) responded by highlighting the many ways corporations have been successful in “forum shopping through legislation,” such as the so-called Class Action Fairness Act of 2005 (CAFA) and through contract clauses which force plaintiffs to use a forum chosen by the very people they are suing.  In other words, civil defendants force victims to sue in the courts most friendly to corporate interests.

Second, Theodore Frank, President of the Center for Class Action Fairness, raised objections to cy pres awards.  These are awards given to charities when the plaintiffs are dead or unknown. Frank claimed these awards, rob victims and unjustly reward plaintiff attorneys. However, Joanne Doroshow, Executive Director for the Center for Justice and Democracy, defended the practice as a necessary tool that holds malfeasant civil defendants accountable by imposing liability where responsibility is clear but the victims are unknown or otherwise unavailable.  The alternative would be a de facto reduction in the amount a defendant must pay just because victims had died or could not be found.

Third, the Republicans criticized the use of third party ligation financing (TPLF) in which lenders provide money to finance litigation and use of contingency fee lawyers by state attorneys general. However, Doroshow pushed back, arguing that TPLF enables injured victims to get a day in court rather than to be forced to take a low ball offer because they cannot afford to put food on the table.

John Beisner, a corporate attorney with Skadden Arps and the U.S. Chamber of Commerce’s Institute for Legal Reform, was hostile to the practice of state attorneys general hiring  outside counsel on a contingency fee basis to represent the state in civil litigation.  Beisner worried that the use of private counsel would give rise to conflicts of interest and loss of public trust. Reps. Nadler and Conyers said the practice allows under-resourced and understaffed state attorneys general offices to enforce state and federal laws at no cost to the taxpayer. Beisner also characterized these arrangements as a “pay-to-play” relationship.

Rep Ted Deutch (D-FL) exposed the hypocrisy of this argument by asking Beisner why the Chamber of Commerce heavily contributes to state judicial races while opposing plaintiff practices that finance litigation without directly affecting the justice system. Rep. Deutch pointed out that the financing agreements in no way influence the actual courts, unlike the Chamber’s practice of pouring money into state judicial races.

Wednesday’s hearing represented another thinly-veiled attempt to protect corporate defendants from taking responsibility for their wrongdoing while raising more  barriers to  victims’ access to justice. As Professor Doroshow pointed out, litigation abuses are a real concern – but many of the most flagrant abuses are committed by corporate defendants burying overmatched individuals in frivolous motions and procedures designed to delay and deny justice.  

As we have noted elsewhere on this blog perhaps the greatest “litigation abuse” is the expanding practice of forcing Americans to sign away their right to litigate at all through forced arbitration clauses with class action waivers.

Learn more about efforts to protect Americans’ access to court at Take Justice Back and at AFJ’s 1% Court Campaign. 

Why Judges Matter: Sometimes the “court of last resort” is a court

Victimized by credit reporting agencies, a desperate consumer turns to federal court

Perhaps you saw the segment of 60 Minutes this week about the nightmare that can follow when credit reporting agencies make mistakes – something they do with alarming frequency.  (If you missed it, you can see it here):

The story made clear that the process for trying to get an error corrected doesn’t work.  Ohio Attorney General Mike DeWine alleged that the companies routinely violate the Fair Credit Reporting Act.

But what struck us was how one victim finally got justice – the one and only step she could take.

Her name is Judy Thomas.  But the bad credit of one Judith Kendall somehow wound up on her report.  According to 60 Minutes:

 it became a six-year battle with credit agencies, requiring box loads of correspondence to try and prove that she was Judy Thomas, not Judith Kendall, all to no avail. …

There are logs of daily phone calls to dispute centers, hundreds of letters to Experian, Equifax and TransUnion, even correspondence from Judith's Kendall's creditors in Utah, acknowledging that the debts on her credit report aren't hers. …

Thomas told 60 Minutes:

“I couldn't refinance. I couldn't take advantage of the interest rates. I couldn't get a new-- I couldn't get a car. I couldn't cosign for my children's student loans. And I'd worked hard for my credit. I was-- and these people were taking it away from me.”

Then comes what is, in many ways the most important part of the story:

Finally Judy Thomas took the only recourse available to her. She sued Equifax and TransUnion in federal court. And after a year-long battle, the credit reporting agencies settled for an undisclosed sum and promised to clean up her file.

Federal courts don’t just deal with abstract concepts, or with terror suspects or alleged crime bosses.  Sometimes federal courts are the only recourse for everyday Americans like Judy Thomas.  That, of course, is one reason why it’s so important that there is a judge for every vacancy on our federal courts.  When there are too few judges, cases like this drag on for years – something that the Judy Thomas’ of the word cannot afford.  Or they may never be brought at all.

Of course there are other solutions – like enforcing the Fair Credit Reporting Act and beefing up penalties for credit reporting agencies that fail to correct their mistakes.  But when all else fails, we need federal courts – fully staffed with federal judges.

Senators introduce bill to ban LGBT discrimination in jury selection

Senator Shaheen

A bipartisan group of Senators, including Senators Jeanne Shaheen (D-NH), Susan Collins (R-NH), and Sheldon Whitehouse (D-RI), introduced the Jury ACCESS (Access for Capable Citizens and Equality in Service Selection) Act, which would ban discrimination in federal jury selection on the basis of sexual orientation and gender identity. As Senator Shaheen explained, “[d]iscriminating against a potential juror because of sexual orientation or gender identity is unacceptable, and it should not be tolerated. Our country is founded on principles of inclusion and acceptance and the jury selection process should be no different.”

Currently, while federal law bans discrimination in jury selection on the basis of race, color, religion, sex, national origin and economic status, discrimination against potential jurors on the basis of sexual orientation or gender identity is not prohibited. Among the states, only California and Oregon ban exclusion from jury service on the basis of sexual orientation or gender identity in state court.

LGBT organizations applauded the bipartisan legislation. Allison Herwitt, with the Human Rights Campaign, expressed HRC’s support, saying, “[a]rbitrary and discriminatory exclusion of LGBT jurors has no place in our federal courts. We appreciate the bipartisan leadership of Senators Shaheen, Collins and Whitehouse to help ensure every American is guaranteed the right to be judged by a jury of his or her peers.”

Alliance for Justice strongly supports the Jury ACCESS Act, which is a step to ensuring that all Americans have equal access and participation in our justice system.

Senator Whitehouse speaks out about important Supreme Court case

Senator Sheldon Whitehouse (D-RI) yesterday spoke out (.pdf link) about the upcoming Supreme Court case, Maxwell-Jolly v. Independent Living Center, a case that will have significant implications for the rights of everyday Americans. In a statement entered into the Congressional Record, Senator Whitehouse said that:

The cases come to the Court out of California. In 2008, the State announced a plan to sharply reduce the reimbursements paid to medical providers under Medi-Cal, the State’s Medicaid program. A broad range of parties – including pharmacies, medical clinics, hospitals, doctors, health care providers, senior citizens’ groups, and Medicaid beneficiaries – brought suit asking for an injunction to stop the change from going into effect. They’re not looking for money, just an order requiring California to follow federal law. . .

[T]hey took California to court to make the State obey federal law and ensure patients have access to the Medicaid benefits required by Congress.

The plaintiffs in this case have argued that the California plan conflicts with the federal Medicaid statute, which requires states to ensure that reimbursement rates are “sufficient to enlist enough providers so that care and services are available . . . at least to the extent that such care and services are available to the general population.” 42 USC 1396(a)(30)(A). The parties bringing suit in the case argue that California’s cuts will decrease Medicaid recipients’ access to medical providers.

If individuals cannot go to federal court and challenge state actions like California’s as contrary to federal law, people injured by these state laws will have no recourse or ability to curtail future injury. States will be able to violate federal laws pertaining to Medicaid, immigration, unemployment, and the environment.

Senator Whitehouse noted that the Supreme Court has repeatedly allowed corporations to bring Supremacy Clause challenges like the one plaintiffs are bringing here. For example, the Court has allowed big corporations to challenge as preempted state laws that protected unions, restricted delivery of tobacco, and regulated banks. The Court again and again allowed big business to protect their interests using a Supremacy Clause challenge, and as Senator Whitehouse remarked:

Now is not the time to inhibit the Supremacy Clause and preclude regular Americans from having their federal rights enforced in court, particularly when that privilege has been respected for corporations.

It remains to be seen whether the Corporate Court will treat everyday Americans differently than it has treated corporations and limit access to the courts. Click here to read more about Maxwell-Jolly v. Independent Living Center.

Raising the Price of Justice

Late last week, the House of Representatives passed a budget amendment that has serious ramifications for access to justice in America.

The Equal Access to Justice Act (EAJA) provides some reimbursement for court costs incurred when individuals, small businesses, or certain non-profits successfully use the courts to hold the government accountable for an illegal action. As of 2009, most of those reimbursed by EAJA have been involved in Social Security and Veterans Affairs cases.

Now, the House of Representatives, led by Rep. Cynthia Lummis (R-WY) has voted to stop repaying those legal fees.

EAJA only applies to individuals and groups that are successful in their cases against the government, and who fall below a certain net-worth ceiling. Without EAJA, many of those people would have no hope of affording the sometimes lengthy and always expensive court battles to get justice.

Alliance for Justice lobbied for the Equal Access to Justice Act when it was proposed. EAJA was first a short-term experimental provision, which was later made permanent through a bill sponsored by Senators Grassley (R-IA), Domenici (R-NM), and De Concini (D-AZ).

Supreme Court Issues Decision Protecting Employees From Retaliation

The Supreme Court issued a decision today in the case of Thompson v. North American Stainless, LP. The Court held that an employee who was fired after his fiancé filed a sex discrimination charge with the EEOC could bring a claim under Title VII, the section of the Civil Rights Act that protects against workplace discrimination. It also prohibits employers from taking action that might dissuade a reasonable worker from complaining about workplace discrimination. The employer in the case argued that only the employee who brought the discrimination complaint could sue – not her fiancé.

In an opinion written by Justice Scalia, the Court rejected this argument and noted, “We think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.” In other words, the purpose of Title VII would be undermined if an employer could simply fire a third party to punish an employee who speaks up about illegal discrimination.

The Court also had to address whether a third party like the plaintiff in this case had standing to challenge the employer’s action. The Court determined that an employee constitutes a “person aggrieved” and is eligible to bring a Title VII challenge when that person “falls within the ‘zone of interests’ sought to be protected by the statutory provision.” Because Title VII was meant to protect employees from their employers’ unlawful actions, Thompson was protected by the statute. The Court declined to say how far this zone of protection extends, but did not have difficulty extending it to the fiancé of the person who filed a discrimination complaint.

Justice Kagan took no part in the Court’s decision, presumably because she participated in drafting the Solicitor General’s certiorari stage brief, which was filed in May 2010, just after she stepped down as Solicitor General.

AFJ has more analysis of this and other cases before the Supreme Court on our website, “The Corporate Court’s 2010-11 Docket.”

Supreme Court to Hear Case with Access to Justice Implications

The Supreme Court has granted cert in a trio of consolidated cases that will have significant implications for access to justice. The cases are Maxwell-Jolly v. Independent Living Center, Maxwell-Jolly v. California Pharmacists, and Maxwell-Jolly v. Santa Rosa Memorial Hospital.

The consolidated case arises from California’s decision to issue ten- and five-percent cuts for Medicaid payments to doctors, dentists, pharmacies, adult day health care centers, and clinics. A group of medical providers and low-income elderly and disabled individuals challenged the cuts, arguing that California’s actions conflicted with Section 1396a(a)(30)(A) of the Medicaid Act, which requires states to set reimbursement rates "sufficient to enlist enough providers so that care and services are available… at least to the extent that such care and services are available to the general population."

The Ninth Circuit held that the claim could proceed and that a preliminary injunction preventing the cuts from going into effect should be granted. The state officials appealing the decision asked the Court to address two issues:

• Whether Medicaid beneficiaries and providers can sue to enjoin a state's violation of the Medicaid Act by bringing a Supremacy Clause preemption challenge
• Whether the Medicaid Act requires states to consider the impact on access and quality before reducing rates paid to providers.

The Supreme Court has agreed to hear the first question only.

What is at stake in this case is the ability of individuals to go to federal court and challenge state actions that are preempted by federal law. Since the statute at issue in this case does not contain an individual right that would allow the plaintiffs to sue for money damages, the plaintiffs' legal challenge instead argues that the state cuts conflict with federal law – the supreme law of the land.

The plaintiffs are seeking only to ensure that California is brought into compliance with federal law – not to recover an award or attorney’s fees. For the Court to cut off this avenue would mean that the citizens in this case would have no recourse or ability to curtail future injury. It is important that people have the ability to challenge state actions as contrary to federal law, otherwise states would be able to violate the Medicaid Act-- or other federal laws -- and citizens who are injured as a result would have no way to stop additional injuries.

This case could have profound implications for one of Alliance for Justice’s cornerstone beliefs: that all Americans have the right to secure justice in the courts and to have our voices heard when government makes decisions that impact our lives.

Supreme Court hears argument in two cases to decide if injured US citizens can sue responsible foreign companies in US courts

The Supreme Court will hear arguments today in two cases that could severely limit the ability of individuals who are harmed by defective products to seek justice in court.

Both cases address the power of state courts to exercise jurisdiction over corporate defendants.

In J. McIntyre Machinery v. Nicastro, Robert Nicastro lost four of his fingers at work in New Jersey when his hand was accidentally caught in the blades of a metal cutting machine made by J. McIntyre Machinery, a company incorporated in England. He claims the machine was missing a safety guard that could have prevented the accident. J. McIntyre sells machines, including the one that injured Nicastro, to an American distributor that it knows will sell the products in many regions of the United States, and also attends trade shows throughout the country. Despite its long history of doing business in the U.S., J. McIntyre argues that it did not know that one of its machines would end up in New Jersey and therefore that they cannot be sued for Nicastro's injuries in New Jersey courts.

In Goodyear Luxembourg Tires v. Brown, the families of two 13-year-old children from North Carolina killed in a bus accident in Paris sued several foreign affiliates of Goodyear in North Carolina after French investigators determined that faulty Goodyear tires caused the accident. The North Carolina court held that the foreign Goodyear affiliates could be sued in the state because they export at least 44,000 tires to North Carolina each year through a highly organized distribution process. The affiliates challenge the court's jurisdiction over them.

In both cases, Americans harmed by faulty products are seeking justice in our courts, and in both cases, the Supreme Court has the opportunity to affirm that international corporations can be held accountable in American courtrooms. Unfortunately, the Supreme Court's recent trend of siding with corporations over individuals could set a dangerous precedent for Americans who are injured or killed by faulty products.

Alliance for Justice presents “Forced Arbitration and the Roberts Court: How Hidden Clauses in Everyday Contracts Can Take Away Your Rights”

On November 10, 2010, Alliance for Justice hosted a panel in San Francisco to discuss the importance and potential ramifications of the U.S. Supreme Court case, AT&T Mobility v. Concepcion.

The panel comprised three distinguished attorneys who practice in the fields of consumer and employee rights: Arthur Bryant of Public Justice, Cliff Palefsky of McGuinn, Hillsman & Palefsky, and James Sturdevant, AFJ board member and Principal of The Sturdevant Law Firm.

This event was held just one day after the Supreme Court heard oral arguments in AT&T v. Concepcion, which may have the effect of severely restricting individuals’ ability to seek justice in the courts by use of class action law suits.

All three panel members emphasized the immensity of what is at stake in this case – the ability of large corporations to effectively shield themselves from liability for their wrongdoings and prevent everyday citizens from grouping together to address these wrongdoings in a class action lawsuit.

The panelists agreed that Tuesday’s oral arguments went better than they had anticipated, but that it is still quite unclear exactly how the Court will decide. Although the panelists expressed a reserved optimism that the Court would decide this case favorably, they maintained that regardless of the Court’s decision in this case, there are a number of other cases the Court will be decide on similarly pivotal issues concerning access to justice. Forced arbitration clauses and restrictions on class action suits are but two examples of ways in which large corporations are skewing justice in their favor.

The event was held in collaboration with National Employment Lawyers Association, The Employee Rights Advocacy Institute for Law & Policy, Public Justice, and the Bay Area Lawyers Chapter of the American Constitution Society.

For more information on the details of this case, AFJ has released this report, and AFJ President Nan Aron has written this article for Change.org.

U.S. Lags in Access to Justice

The United States ranks below most other developed nations and even some Third World countries when it comes to access to justice, according to the World Justice Project's new "Rule of Law Index." Dan Froomkin in the Huffington Post yesterday summarized the results from The Index and particularly noted the large gap between the rich and the poor when it comes to access to justice and satisfaction with our legal system.

As the World Justice Project reported, “For instance, only 40% of low-income respondents who used the court system in the past three years reported that the process was fair, compared to 71% of wealthy respondents. This 31% gap between poor and rich litigants in the USA is the widest among all developed countries sampled. In France this gap is only 5%, in South Korea it is 4% and in Spain it is nonexistent.”

Considering the well-documented bias in our courts in favor of big business, these findings are not surprising and demonstrate that the American legal system, which was once the envy of the world, is increasingly sliding into dysfunction, particularly in civil proceedings. Further complicating access to justice issues is an ongoing crisis in our courts caused by the fact that one in eight federal judgeships is sitting empty. Republican obstruction of judicial nominees in the Senate is unprecedented and making it even more difficult for ordinary Americans to receive justice due to overburdened courts. Tell your Senators to make our justice system a priority.

Judge Sotomayor and Business and Consumer Law

Yesterday, Alliance for Justice released a report and hosted a telebriefing for the press on Judge Sonia Sotomayor’s business and consumer law record. Joining AFJ in the briefing were Prof. Eduardo Peñalver of Cornell University Law School and Hispanics for a Fair Judiciary, and National Consumers League Executive Director Sally Greenberg.

This report, the third in a series on Judge Sotomayor, examines her consumer and business law record, including labor and environmental law, bankruptcy, consumer protection and intellectual property among other issue areas. For those of you who are baseball fans, or simply curious about President Obama’s comments regarding Judge Sotomayor’s “saving baseball” you may find the section on labor law of interest.

The report examines the case Silverman v. Major League Baseball Player Relations Comm. Inc.; Judge Sotomayor ended the 1995 baseball strike by issuing an injunction against baseball owners - allowing the players to go back to work and the baseball season to begin.

“At the time the case was before Judge Sotomayor, the baseball strike was the longest work stoppage in professional sports history and had caused the cancellation of the 1994 World Series. Judge Sotomayor ruled against the owners because after negotiations between the players and owners became difficult, the owners tried to unilaterally change the terms of the collective bargaining agreement under which the players had been working. Judge Sotomayor held that this was an unfair labor practice and issued an injunction to protect the public interest, to maintain public confidence in the country’s labor laws, to avoid irreparable injury to the players, and to put the players and owners in the same bargaining position they were in before the strike.”

Sally Greenberg and Eduardo Peñalver also provided insights on the broader lessons that can be gleaned from Judge Sotomayor's record in this area of the law. "Judge Sotomayor wants people to have their day in court, rather than letting inconsequential technicalities prevent people from being heard," observed Greenberg. "She meets issues of first impression with caution and careful analysis. She's very much in the tradition of a careful, respectful common law judge, much like the justice she will be replacing, David Souter," Peñalver noted.

The current economic climate means issues relating to business, bankruptcy, and consumer protection are more important than ever. Judge Sotomayor has extensive experience in these areas of the law and, as the report notes, her legal writings show her ability to “recognize the impact her decision will have on the parties involved in a case, [while betraying] no preset notions or biases.” You can read the full report here.

AFJ continues to push Congress to pass the Medical Device Safety Act

This morning the Campaign to Stop Corporate Immunity held a conference call that included a campaign update, as well as a short presentation from Alliance for Justice on Judge Sotomayor’s record on preemption. Jennifer Meinig, Legislative Counsel for AFJ, shared data from AFJ’s recently released report focusing on Judge Sotomayor’s access to justice cases. Judge Sotomayor has ruled on only a few preemption cases, but has exhibited a characteristically measured approach in her rulings. The decisions reflect a rigorous analysis and Judge Sotomayor delves deep into the facts of cases reflecting the complex interplay between state and federal law. Ms. Meinig gave a few examples of cases that typify Judge Sotomayor’s rulings involving preemption including, Protection & Advocacy for Persons with Disabilities v. Kirk, 448 F.3d 119 (2d Cir. 2006), Patient Protection & Advocacy, Inc. v. Houstoun, 228 F.3d 423 (3d Cir. 2000), and Empire Healthchoice Assurance v. McVeigh, 396 F.3d 136 (2d Cir. 2005). These cases, and others, are explored in detail in the Access to Justice report.

Sotomayor Hearing Set for July 13

The Senate Judiciary Committee announced today that the confirmation hearings to consider the nomination of Judge Sonia Sotomayor to be an Associate Justice of the United States Supreme Court will begin on July 13, 2009. Judge Sotomayor returned the Committee's bipartisan questionnaire on June 4. The questionnaire and attachments are available online. The date of the hearings is consistent with the average timeline for a Supreme Court nominee’s confirmation process, and should allow Judge Sotomayor to be confirmed in time for the start of next year’s Supreme Court term which begins in October.

Yesterday we released the first in a series of in-depth reports on Judge Sotomayor’s record. Alliance for Justice will release a new report a week leading up to the hearing, providing thorough analysis of key areas of Judge Sotomayor’s record: access to justice, criminal law, civil rights, constitutional law and business and consumer law. The first report on access to justice is available on our Supreme Court Watch page.

The Sotomayor Record: Access to Justice

Today Alliance for Justice unveiled the first in a series of in-depth reports analyzing Supreme Court nominee Judge Sonia Sotomayor’s record.

This first report focuses on the issue of Access to Justice, which encompasses a variety of legal issues including justiciability, preemption, stripping courts of their jurisdiction to hear certain claims, sovereign immunity, recovering attorneys’ fees, interpretations of statutes of limitations, and certifying classes for class-action litigation. These issues illustrate the important role courts play in ensuring equal justice for all. The report analyzes Judge Sotomayor’s record in each of these areas and finds that…

“Judge Sonia Sotomayor has a careful, cautious, and reasoned approach to access
to justice issues. Her rulings are well within the legal mainstream.
She closely follows precedent, and analyzes facts with meticulous detail.
Judge Sotomayor shows no bias for or against plaintiffs. She shows
sensitivity toward persons bringing claims, but always grounds her decision
making on the law and binding authority.”

Visit our Supreme Court Watch page for more information and to read the report in its entirety.