The confirmation hearing for Brett Kavanaugh offered Americans a contemporary reminder of what the Framers of the Constitution had in mind when it comes to protecting many of our fundamental rights and liberties. When it came to individual access to civil courts, a right guaranteed in the Seventh Amendment, they couldn't have been clearer. No less than James Madison put the value of that guarantee in stark terms: "Trial by jury in civil cases," he said, "is as essential to secure the liberty of the people as any one of the pre-existent rights of nature."
A CPR report out today, Civil Justice in the United States: How Citizen Access to the Courts Is Essential to a Fair Economy, details just how vital civil courts remain to promoting individual freedom, especially in the context of our modern economy, while also laying bare the effects of a years-long campaign to deny Americans meaningful access to the courts.
The core principle of tort law is that the freedom to pursue our individual interests does not include the right to harm others. And, when our irresponsible actions or decisions do cause such harm, those who are injured – regardless of their economic or social status – can hold us accountable in court, including for full compensation for their injuries.
These twin principles of care and compensation are among the key foundations of a fair economy. They empower us to take chances and to build and invent, for our own benefit and for that of our communities. At the same time, they ensure that one's opportunities for economic advancement are not stalled or undone by injuries caused by unreasonably dangerous products and other irresponsible corporate behavior. In a fair economy, people who are injured in this manner are compensated adequately – made as whole as possible – so that they can continue to exercise their liberties, participate in economic activities, and attempt to achieve their full potential.
The freedom-enhancing effect of the civil courts is especially important for members of historically disadvantaged communities. For them, civil courts must remain a "great equalizer" in our society – a place where even the greatest economic and power disparities evaporate and where even the wealthiest individuals and most powerful corporations can be held accountable. The compensatory function of civil justice that the courts offer is especially critical for these individuals, because, without it, they would be forced to bear not just the pain, but the economic costs of harm done to them by others, resulting in a wealth transfer that is not only unjust but regressive in nature. For individuals and families struggling to make a living, put food on the table, and educate their children, the ability to recover compensation can mean the difference between economic disaster and economic stability and survival.
As the report explains, the role of civil courts in promoting a fair economy is especially important at this time, for three reasons. First, the problem of social and economic inequality continues to grow, threatening to destabilize our society. These problems can be alleviated or reversed if we work to strengthen the institutions that are essential to promoting greater opportunities for those at the bottom of the economic ladder.
Second, the growing complexity of our individualized economy is increasingly putting individuals in harm's way. In particular, the nature of the public health, safety, environmental, and financial risks we face are such that it is all but impossible for individuals to protect themselves against harm on their own.
Third, even as the risk of harm we face increases, the legal institutions we have traditionally relied on to avert such harms – state and federal regulations – have been rendered ineffective and weak thanks to decades of stagnated budgets and politicized attacks. As a result, in many cases, the threat of tort liability serves as the strongest deterrent many businesses face against putting their profits ahead of the welfare of their customers or neighbors.
The new report offers four recent case studies illustrating the important dynamics at work, connecting the individual pursuit of civil justice to the collective benefit of a fairer economy for all. They include the following:
- The opioid crisis;
- The pollution discharges caused by improperly stored waste on factory farms raising thousands of hogs in confined spaces;
- The Wells Fargo fake account scandal; and
- The injuries, property damage, and disruption of entire fenceline communities caused by a chemical manufacturing plant that failed to safely shut down prior to Hurricane Harvey.
What unites these case studies is that each tells the story of individuals and communities availing themselves of the courts to fight back against egregious acts of wrongdoing by powerful companies. They demonstrate how these harms occurred despite the existence of federal and state regulations meant to avert them. And they teach how the pursuit of civil justice has the potential to provide some measure of compensation and deterrence against wrongful actions in the future.
But the report also contains an important warning: Americans' access to the courts has been eroded by a decades-long bombardment from corporate lobbyists and attorneys. In particular, they have successfully pressed for legislation and devised contract provisions that hobble the effective functioning of our courts. Among other things, these special interests have worked to:
- Bar the courthouse door through forced arbitration and onerous requirements that Americans must satisfy before they are even eligible to initiate a claim.
- Divide and conquer Americans with measures that prevent or limit access to class action litigation.
- Shift the burden to victims with arbitrary caps or limits on the amount or type of damages available to prevailing plaintiffs.
Unfortunately, several of the case studies also illustrate how these successful attacks on meaningful court access are pushing the pursuit of justice out of reach of many Americans.
The report concludes by calling on lawmakers who are concerned with promoting a fair economy to make the fight for citizen access to the courts one of their top priorities. They must not just resist further attacks on civil justice, but also explore legislative reforms that would affirmatively restore full and meaningful access to the courts.
Joining me in co-authoring the report are CPR Member Scholars Martha McCluskey, Thomas McGarity, Sidney Shapiro, and Karen Sokol. You can find the report on CPR's website.