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Center for Progressive Reform



Civil Justice in the United States

How Citizen Access to the Courts Is Essential to a Fair Economy

by Martha McCluskeyThomas McGaritySidney ShapiroKaren Sokol, and James Goodwin

Executive Summary

Americans depend on our civil courts to keep the economy on a fair and firm foundation, but a decades-long campaign to limit access and tamp down awards to injured parties has left courts with diminished power. In an era of rising economic insecurity and inequality that has left many individuals and communities struggling to overcome disadvantages beyond their control, we need legislators and policymakers at all levels of government to take action to promote greater access to justice.

Too many individuals and families have seen their chances at economic advancement stalled or undone by injuries caused by unreasonably dangerous products and other irresponsible corporate behavior.  This report focuses on four relevant case studies, each of which illustrate how these kinds of profound harms can deprive individuals and communities of a meaningful opportunity to participate in the economy. These case studies include:

  • The opioid crisis that has led to thousands of deaths and addictions and the destruction of families and communities across the country.
  • The pollution from factory farms that raise thousands of hogs in confined spaces without using state-of-the-art management practices for the tons of manure generated daily.
  • The Wells Fargo fake account scandal that resulted in the theft of millions of dollars from consumers who did not know about the accounts.
  • The injuries to first responders, the significant property damage, and the disruption of entire “fenceline” communities located next to a chemical manufacturing plant that failed to safely shut down prior to Hurricane Harvey.

In a fair economy, people who suffer an injury or are hurt economically by someone else’s irresponsible behavior are compensated adequately so that they may have the opportunity to achieve their full potential. Our civil courts play a key role in pursuit of this vision for our society. They provide an orderly process for victims to seek compensation when they are injured, and the resulting decisions about liability help govern our interpersonal actions to prevent or avoid future injuries. When the courthouse doors remain open to help everyone, regardless of social or economic standing, even the wealthiest individuals and the largest and most powerful corporations can be held accountable.

When the courthouse doors remain open to help everyone, regardless of social or economic standing, even the wealthiest individuals and the largest and most powerful corporations can be held accountable.

The four case studies illustrate how the pursuit of civil justice is able to contribute to a fair economy in each of these ways. “Civil justice” refers to holding people and corporations accountable for their actions (or in some cases, their inaction) through laws and procedures that ensure fair compensation for anyone harmed.

For civil justice to play this role, Americans require full and unfettered access to the courts. They look to their elected officials to remove barriers that might block such access. Over the years, teams of corporate lobbyists and lawyers have successfully pressed for legislation and devised consumer contract provisions that hobble the effective functioning of our courts as a check on the behavior of the politically and economically powerful. Three strategies in this campaign are:

  • Barring the courthouse door through forced arbitration and onerous requirements that deserving plaintiffs must satisfy before they are eligible even to initiate a claim;
  • Dividing and conquering plaintiffs with measures that prevent or limit access to class action litigation; and
  • Shifting the burden to the victim with arbitrary caps or limits on the amount or type of damages available to prevailing plaintiffs.

While this campaign continues, individuals continue to stand up to the people and companies that have harmed them, as the case studies illustrate. With the aid of enterprising attorneys, they are using the courts to address harms that can contribute to social inequality.

People have turned to the courts in all of these cases because government standards for preventing these kinds of harms were inadequate or their enforcement was too feeble. Regulatory agencies’ budgets and staffing levels have failed to keep pace with our expanding economy, and as a result, agencies have limited capacity to prevent harm and identify and respond to new hazards. This trend, viewed in the context of rising economic inequality in the United States, underscores the value of our courts in providing individuals and families with an essential venue to seek compensation for their injuries. Our courts cannot reverse the rising economic inequality in the United States, but they can prevent the situation from becoming worse – if law and policy allow them to do so. As a nation, we are looking to lawmakers and advocates who believe in the importance of establishing a fair economy by guaranteeing meaningful access to the courts.

CPR is grateful to American Association for Justice Robert L. Habush Endowment for supporting the development of this report, as well as the Bauman Foundation, the Deer Creek Foundation, and the Public Welfare Foundation for their generous support of CPR’s work in general.

 

 

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© Center for Progressive Reform, 2018