Learn more about Peltz-Steele v. UMass Faculty Federation at Court Listener (complaint) and the Liberty Justice Center. The case is now on appeal in the First Circuit as no. 22-1466 (PACER paywall). Please direct media inquiries to Kristen Williamson.
Showing posts with label Seventh Amendment. Show all posts
Showing posts with label Seventh Amendment. Show all posts

Tuesday, March 22, 2022

Whitehouse laments mandatory arbitration, civil jury woes; SCOTUS-nominated Jackson does not engage

Senator Sheldon Whitehouse (D-R.I., one of my state senators) just questioned U.S. Supreme Court nominee Judge Ketanji Brown Jackson on the importance of the civil jury.

(I wrote recently about Judge Jackson's trial court record, here and here.)

Tort law does not usually figure much into U.S. Supreme Court confirmation hearings, so when it does, it's worth paying attention. While tort law can be implicated directly in the work of the U.S. Supreme Court, for example, in the application of federal common law in admiralty, tort law is more likely to make an appearance ancillarily to constitutional law, the area of senators' greatest interest in the confirmation process.  

Those appearances of tort law usually are indicative of the interests of the day.  When gun control and the Second Amendment were hot topics in the 20-aughts, tort law made cameos in questioning about the defenses of self and property.  Senators have been interested periodically in the scope of civil rights law to combat gender discrimination.  Dialog on that point has imported principles of causation, because civil rights law, especially in private remedies, borrows both procedural and substantive machinery, including limiting principles, from common law tort.

At about quarter to one in the extended morning of today's confirmation hearings, Senator Whitehouse sought Judge Jackson's endorsement, which she gave, of statements on the importance of the civil jury.  The Seventh Amendment to the U.S. Constitution guarantees a right, if qualifiedly, to a civil jury, and the mechanism was famously admired by Alexis de Tocqueville in Democracy in America (1835).  Yet the institution has been a waning feature of American civil justice, largely as an incidental function of the dramatic decline in civil trials during the 20th century, but also as a deliberate effect of corporate America's embrace of mandatory arbitration.

Mandatory arbitration, removing cases from the courts upon the purported consent of consumers and victims of tortious wrongdoing and breach of contract, has been a preoccupation of consumer protection advocates and anti-tort reformers (or plaintiff-side "tort reformers"), such as Ralph Nader.  (The issue was among those addressed by the documentary Hot Coffee in 2011, particularly in the painful context of purported consent to dispute resolution in event of criminal sexual assault.  Unfortunately, because the point hardly diminishes the problem on the merits, the story highlighted in the film was later challenged as a possible fabrication.)  Among the many shortcomings of arbitration as a mechanism in the service of justice that rub me the wrong way, besides its overwhelming favoritism for corporate respondents, is the lack of transparency, which allows wrongdoers to persist in misconduct in defiance of public accountability.

Senator Whitehouse has been focused lately on what he perceives to be politicization of the judiciary through the use of "dark money," that is, money of unknown or vague origin, to influence the appointment (and in some states, election) of judges, typically to further the interests of big business.  Whitehouse wrote about the problem in the Yale Law Forum in 2021, and I recently wrote about Whitehouse writing about the problem.  He talked about that issue both in his opening remarks on the Judiciary Committee yesterday and at the start of his questioning today.  This focus is a natural extension, and broadening, of his concern over civil juries, about which he wrote also, in a law review article for William & Mary in 2014.

I created a C-SPAN clip from today's hearing.  C-SPAN has a transcript below it, but be warned, the automated system made some egregious errors, e.g., reading "civil juries" as "simple majorities."


Frankly, I didn't care for Judge Jackson's response.  Her initial reflection about citizens sitting in judgment over one another seemed to speak to the criminal trial.  She failed to acknowledge the separate, separately important and separately threatened, civil dimension on which Whitehouse was focused.  When he pressed her again on the question, in relation to the risk of jury tampering, her response, again, was painfully generic and indicated no recognition of the particular problem of the vitality of the civil jury.  On a third go, Whitehouse explicitly cited mandatory arbitration, the Seventh Amendment, the employment context, and corporate power.  Judge Jackson had no opportunity to respond.

I simply can't tell whether Judge Jackson was unclear on what it is Whitehouse is worried about, or she was simply trying, presumably upon handlers' instructions, to remain utterly bland and uncontroversial in any declaration.  Whitehouse thanked Jackson for answering his questions with clarity and expressly recognizing the importance of the civil jury.  But she had not. 

After the exchange, Senator Dick Durbin (D-Ill.) noted pending legislation that would override purported consent to mandatory arbitration in sexual assault matters.  The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 was signed by the President on March 3: a welcome change, a long time coming (since Hot Coffee; #MeToo revived the appetite), though redressing only a sliver of the mandatory arbitration problem.  Durbin was talking about, I assume, the Forced Arbitration Injustice Repeal (FAIR) Act, which, as H.R. 963, narrowly passed in the House, 222-209, just last week.  Its companion S.505 has been long pending in the Judiciary Committee.  The FAIR Act would apply to employment and consumer disputes.

Incidentally, just before the jury discussion, Senator Whitehouse asked Judge Jackson whether it is ever appropriate for an appellate court to do fact-finding outside the record.  She said that she knew of no such occasion.  Neither of them referred to, nor, doubtless, even thought about, the latitude afforded appellate courts to research the law of foreign jurisdictions, which is treated for most purposes as a question of fact.  I note the issue only because American appellate courts' unwillingness to investigate foreign law in cases in which it is implicated often impedes the attainment of justice in the jurisdictionally transnational cases increasingly generated by globalization, not only in corporate matters such as business contract disputes, but in family law and civil rights.

The Sullivan question has come up today, too, this afternoon by Senator Klobuchar (D-Minn.).  She seemed to suggest that journalists' lives will be put at risk without the "actual malice" standard.  Never mind the reputations and careers that have been ruined in the name of protecting press negligence and blissful ignorance.  I don't have the stomach today to tackle such uninformed melodrama.  As one might expect, Judge Jackson stuck close to tried-and-true principles of stare decisis.

Friday, May 8, 2020

Shielding business from coronavirus torts neglects deep-seated dysfunction in litigation, health insurance

Amid reopening and the controversy over reopening, American private business is seeking legislative protection against coronavirus-related tort litigation.

To oversimplify, businesses are worried about being sued if a worker or customer contracts the virus in the workplace or in a retail space.  Tuesday morning, U.S. Chamber of Commerce Executive Vice President and Chief Policy Officer Neil Bradley told National Public Radio that the Chamber is not asking for blanket immunity, but "a safe harbor ... against frivolous lawsuits."

"No one wants to protect bad actors here," Bradley said.  He suggested that liability could be predicated on gross negligence or "willfully forcing workers to work in unsafe conditions," which, legally speaking, is recklessness.

Protecting business from litigation is the Chamber's bread and butter, and that doesn't make it the Big Bad Wolf.  Businesses, especially small businesses, represent real people, owners and workers, who, in the absence of any extended public safety net, need to work to make ends meet.  Facing bankruptcy because of prolonged closure or because of the inevitability of a contagious disease surmounting all precaution is a heck of a catch-22 to put a business in.  From that perspective, the Chamber's position seems a fair ask.

At the same time, the Chamber's advocacy highlights two enormous socio-legal problems in America: transaction costs in tort litigation and employment-based health insurance.  A safe harbor would brush both these problems back under the rug.

It isn't tort litigation per se that business fears; it's the cost of that litigation.  Corporate defense—that's the kind of law I practiced a million years ago—wins in litigation with an enviable record.  The burden of proof rests with the plaintiff, which means that even meritorious causes may fail upon the vagaries of evidence.  What's more, the usually superior resources of the corporate defense bar warp the playing field of an adversarial contest predicated on the fallacy that the truth will out.  But the defense's advantages don't change the fact, for many reasons I won't here explore, that litigation costs a fortune.

As a result of runaway transaction costs, everyone loses.  Plaintiffs and would-be plaintiffs with meritorious complaints wind up not suing, winning nothing, or winning far less than will make them whole.  Plaintiffs without meritorious complaints may nevertheless win in settlement.  Meanwhile the cost of defense in every scenario, from insurance in anticipation of litigation to fees in its management, is visited on American business and passed on to the American consumer.  And the mere risk of those costs results in over-deterrence that burdens the American marketplace, distorting economic behavior.  This dysfunction renders the U.S. personal injury system a laughingstock elsewhere in the world.

So if the deck is so stacked against plaintiffs, why do they sue anyway, courting an invariably unfulfilling outcome and burdening even prevailing defendants?  That leads us to the second problem, our dysfunctional health insurance system.

An injured person might wish not to sue, yet become a plaintiff anyway; if the person is insured in any measure, the insurer will make the choice.  And notwithstanding the intervention of insurance, our healthcare system usually leaves an injured, would-be plaintiff holding a bag of devastating, bankruptcy-inducing invoices.   (I asked, rhetorically, earlier this week, what perversion of American values causes a working person diagnosed with terminal cancer to have to spend his precious last year of life carving out time from family and chemotherapy to do fundraising.)  In the American litigation and health insurance systems, a plaintiff sues against all odds because the plaintiff has no other choice.  And in a perverse feedback loop, plaintiff and plaintiff's insurer are permitted to pin their hopes on the likelihood that the threat of excessive transaction costs will shake loose a settlement upon even the weakest of claims.

The problem of healthcare costs is compounded by America's stubborn insistence on employer-based health insurance.  Focused on the bottom line, employers effectively make advance healthcare decisions for workers, which, naturally, increases incurred costs for the workers who become patients.  With precious little control over their healthcare choices, but afraid of wholly losing coverage, risking food and shelter for themselves and their families in a country that eschews social safety nets for people while bailing out corporations, workers make irrational market choices, such as working for less than a living wage, accepting a salary to obviate overtime, going to work in unsafe conditions, and going in sick.  We got into this mess entirely by accident, as Planet Money reported in 2009, and we seem helpless to get out of it.  Ironically, now, the Chamber seeks to protect business against a litigation problem that results in large part from employers' own choices, however economically rational, to leave workers unprotected from catastrophe and trapped in a job by an unlevel labor market.

In the theoretical American tort system, the way it works when I teach its rules and policies to law students in America and Europe, the businesses represented by the U.S. Chamber should not be worried about tort lawsuits.  The test for negligence-based liability in American tort law is simply unreasonableness.  A business that takes reasonable measures to protect workers and customers against infection would suffer no liability, even given the inevitability that contagion will still happen in the face of reasonable precautions.

The truth of the matter is quite different from the theory, and Bradley's statement to NPR demonstrates the divergence.  On the one hand, Bradley said that business must be protected against "frivolous lawsuits."  The problem with that rationale is that the legal system already provides for potentially hefty penalties and sanctions against any plaintiff or plaintiff's lawyer who would try to prosecute a truly frivolous lawsuit.

On the other hand, Bradley said that businesses should be liable only upon a heightened culpability standard, gross negligence or recklessness.  "No one wants to protect bad actors here," he said.  Someone who is grossly negligent or reckless is not necessarily bad; bad is a normative judgment and not a workable legal standard.  Colloquially, he is equating bad with culpability, and that's fair.  But if the equation holds, why is a negligent business not also bad?  Is every negligence lawsuit necessarily a frivolous lawsuit?

Bradley made a strategic semantic choice.  Mention of the "frivolous" is calculated to evoke a gut reaction of displeasure in Americans who have been conditioned by the heavy media messaging of tort reform advocacy.

But let's for the moment cut Bradley and the Chamber some slack.  From where they sit, frivolous cases and negligence claims are equally problematic.  That's because plaintiffs are compelled by the circumstances of our dysfunctional systems to sue in negligence even when the merits might not bear out the claim.  In other words, the brokenness of our litigation and healthcare systems over-incentivizes injured persons to litigate.  A plaintiff decides to sue because of desperate need for compensation, not because of the strength of the claim that the defendant is blameworthy.

Negligence isn't the thing that's broken.  For my money, negligence, meaning the reasonableness test, applied by a Seventh Amendment jury, remains one of the greatest innovations in law in the last two centuries and has proved a worthy American example for the world.

Our litigation system is broken.  And our health insurance system is broken.  Adoption of a safe harbor for defendants within those systems as they exist now will just mean that when a business is negligent, and a person gets sick as a result, the sick person will bear the cost of the illness and of the business's negligence.  That's not how American civil justice is supposed to work.  That's not how it was ever supposed to work.

So many pundits, so many of us, Americans and people around the world, have wondered aloud whether this crisis might at last precipitate real and meaningful change, change that might bring people's standard of living into correlation with our fantastic global wealth and technology.  We've wondered whether, and we've dared hope that, we stand at the threshold of the Great Realization, from which humankind will never turn back.

In that frame of reference, the safe harbor proposed by the Chamber, or moreover statutory immunity from tort liability, would be a profoundly disappointing portent of business as usual.

My thanks to Professor Rebecca Crootof at Richmond Law for an email that got me thinking about this.  Thanks also to any loyal reader who made it this far without pictures.  My "Report from a Social Distance Week 7" is delayed but not forgotten; look for it this weekend.

Tuesday, December 4, 2018

Civil rights suit claims a right to education.
The problem might be bigger.

My UMass Dartmouth colleague in history, Professor Mark Santow, also a member of the Providence, R.I., School Board, is part of litigation filed Wednesday, November 28, against the State of Rhode Island, claiming that the government is violating civil rights by failing to provide adequate education to youth in the public school system.

The complaint in Cook v. Raimondo, in federal district court in Rhode Island, where I reside, is available online from WPRO.  The suit was ably contextualized by Alia Wong for The Atlantic and covered by The New York Times.  Wong's piece, along with its sidebars and links, recounts the troubled history of claims to education rights under the U.S. Constitution and the unique if stubborn position of the United States in the world in refusing to add children's education to our pantheon of civil rights.

Personally I worry about the overuse of human rights language to enshrine the mundane as sacred and thereby downgrade basic human needs to aspirational wish lists—witness the dilapidated state of South African townships while the courts struggle to engineer economic rights into reality.  But I also readily admit that our 1789 Constitution, in part owing to its excessively burdensome Article V amendment process, has fallen behind the times on some omissions that, with the benefit of hindsight, seem to be no-brainers—such as sexual equality, the right to privacy, the freedom of information (a.k.a. right to access to information), and quite well arguably, rights to breathable air and basic education.

The Cook complaint smacks of activist litigation, aimed as much at media and policymakers as at the courts.  It gets around to its legal claims in number 121 of its 133 paragraphs.  Nevertheless, the claims are clever and worth pondering.  In five counts, the complaint neatly alleges violation of (1) the equal protection clause (mostly "fundamental interest," though there's a strong thread of "diversity" too), (2) the due process clause, (3) the privileges-and-immunities clause, and then—here's where things get spicy—(4) the Sixth and Seventh Amendments, and (5) the republican guarantee clause.

The Fourteenth Amendment claims are built upon a compelling background that heralds the Framers' recognition of education's essentiality to democracy, followed by a depressing account of how public education in civic virtue lately gave way to a bottom-line-oriented mill of standardized test preparation, woefully inadequately equipped and devoid of vision or values.  The story is downright Orwellian, as the complaint describes the plodding production of glassy-eyed sheep to populate America, children robbed and broken of the knowledge, skill, or will to challenge the status quo.  One wonders that Ayn Rand herself would not be persuaded to the cause of public education.

Added to the conventional Fourteenth Amendment angle are those thought-provoking latter claims about jury service and republican governance.  Citation to the Sixth and Seventh Amendments, as well as the federal Jury Act, focuses on that vital and rare obligation of citizen direct participation in government to assert a denial of rights both to the jurors who are ill prepared for the job and, consequently, the litigants and criminal defendants who depend on an informed jury to vindicate their rights.  In the final count, the republican guarantee clause is cited with indirect reference to the First Amendment ("free speech and other constitutional rights"), suggesting that an ill informed electorate can neither vote nor participate in government sufficiently to maintain representative democracy.  I can't help but think of the seemingly insoluble dilemma of money in politics, evidenced by the fealty to corporate donors pledged by our paralyzed, gerrymandered, and hardly-any-longer representative Congress.

Cook brings readily to mind the Juliana climate change lawsuit (and the Dutch Urgenda decision), about which I wrote recentlyJuliana seems doomed in the U.S. Supreme Court, if ever it were to get that far, despite a curiously indulgent ruling by Judge Ann L. Aiken in federal district court in Oregon (and later), sending the case on to trial.  It's overwhelmingly probable that the Juliana plaintiffs do not expect to win.  Rather, they seek to make a point, and they're doing so well.  So in Cook, too, as in a similar case on appeal in Michigan, the litigants have opined publicly that they hope to draw the attention of lawmakers and to stimulate public discussion—even to educate student-plaintiffs through the process, something also happening in the Juliana case, in which students appears as plaintiffs, and Judge Aiken relies deliberately on the work of student externs.  Consonantly, these cases stir up amicus feeding frenzies; NGOs in Cook already are jockeying for position to get their say on the public record.  (I'm not above it.)

As something of a separation-of-powers formalist, I'm troubled by the use of the courts for policy-making activism.  The courts are not designed for policy-making, and judges are not hired to be activists.  The late Justice Scalia famously and aptly lamented the prospect of nine black-robed "moral philosophers" in Washington, D.C., with lifetime appointments, making policy decisions for a purportedly democratic nation.  When I see a complaint that is drafted for public consumption and political persuasion rather than for judicial interrogation and a search for truth, I fear the strategy undermines whatever remains of the bar's reputation for professional integrity and objective clarity.

At the same time, this rise in judicial activism is a sign and symptom of something very broken about our democracy.  People are resorting to the courts because the political branches are not responsive.  Much as the Cook plaintiffs suggest, our system of government is failing to represent its constituents.  The complaint asserts, "Most social studies classes in Rhode Island do not discuss social problems and controversial ideas ...."  The complaint concludes: "A positive civic ethos requires all students to feel that they have a stake in the society and in its political system, and that institutions can work for them and their families in the future, even if these institutions have not been fully responsive to their needs in the past."

Whether for the right to breathable air or a basic education, a frustrated youth is turning to the courts not as a first resort, but as a last resort.  If in the end, none of our three branches of government delivers on the American promise—not the dream per se, but the opportunity to attain it—where will complainants go next?

The Brookings Institution opined in 2011:

Education has played an important role in the uprisings in the Middle East and North Africa with many commentators noting that educated youth have been integral to what has come to be called the “Arab spring.” However, what they fail to mention is that spending many years in school has failed to give many Arab youth a good education. These revolutions were not propagated by well-educated youth; these uprisings were spurred by the needs and demands of poorly educated youth, whose knowledge and skills do not meet the demands of a rapidly-advancing world.... [Despite near universal access to education,] there has been very low return on investment in terms of meaningful educational outcomes. Education systems throughout the region are hindered by low quality, irrelevancy and inequity.

Next stop: American Spring?