Our Rights, Our Future

Halliburton/KBR Employee Still Has No Access to the Courts

In light of the Franken Amendment currently pending in Congress, we thought it timely to re-post our earlier commentary on Jamie Leigh Jones' lack of access to the justice system. When first accepting employment with KBR/Halliburton, Jones had been forced to sign a mandatory arbitration clause which has now left her unable to pursue accountability for having been raped on the job.

Read Halliburton/KBR Employee Has No Access to the Courts.

How the Supreme Court Pulled a Fast One, and America Didn't Notice.

The media storm surrounding Supreme Court Justice Sonia Sotomayor's confirmation provided us with a powerful illustration of the ways in which our court system not only mirrors, but affects our day-to-day lives. In a nation that is 12.5% Latin American (as of the 2000 Census) and roughly 50% female, the appointment of the first Latina Supreme Court Justice was certainly long overdue. However, legal issues that get zero attention in the mainstream media also have a profound impact on our lives, perhaps more given their ability to slide by unnoticed. This is especially true of two recent cases that flew under the radar, Bell Atlantic Corp vs. Twombly, and Ashcroft vs. Iqbal.

These two cases reflect a significant shift in the Supreme Court’s thinking around the issue of how much people have to know and present to bring a case to court.  In Twombly and Iqbal, the Supreme Court decided to impose a new and vague standard – the 'plausibility standard' – in order to start a case.  What does the term ‘plausibility standard’ mean?  The courts and perhaps Congress are going to take a while to sort it out, but it seems to mean that those seeking to bring a lawsuit not only have to show that the alleged misconduct was not only possible, but plausible. In the past, demonstrating that sort of proof was required during the course of the lawsuit, not as part of the initial papers filed at the start of the case. For example, if people are subject to employment discrimination they may know that they were demoted or fired and that they didn’t do anything wrong, but they don’t have access to the behind-the-scenes information that went into the firing/demotion decision. That means that a person would have a hard time getting proof of discrimination, which is now required in order for that person to bring their case to court.

When the Supreme Court first announced the new standard in Twombly, the media did not pick up on the new requirement. This is likely due to the distinct lack of sex-appeal in anti-trust cases. The media only cottoned on to the ‘plausibility standard’ with the Iqbal decision. Iqbal received slightly more media attention due to the facts of the case dealing with the abuse inflicted upon Pakistani immigrant Javaid Iqbal in detention. Nevertheless, the media did not delve into the shift in ‘pleading standard’ or its impacts, certainly not to any significant degree.

According to Alex Reinert, who argued the case, “The difficult question is how courts are supposed to figure out whether or not a complaint plausibly shows an entitlement of relief. One of the things that the Court refers to is ‘the common sense of judges,’ so it’s possible that the Court is suggesting that a judge is supposed to make an inquiry of his or her own as to whether or not he or she thinks that the complaint is plausible, that is, that the facts alleged in the complaint are plausible in the real world.”

Most law students learn that there’s something called “notice pleading” in federal courts.  Notice pleading means that a person starting a new case has to file papers with enough information to give notice to the other side, letting them know what the case is about.  Have the ‘conservative’ members of the court decided to depart from the time-honored, written-in-stone notice pleading? Why?

Whatever the motivation, the change is likely to affect cases of discrimination. This is expected to be a barrier for people who feel they have to prove that their employer or landlord were intentionally discriminating against them.  It’s often nearly impossible to get the e-mails or memos documenting the intent of an employer or landlord before you file a case.  No one hands documents over until they are required to do so.  Now, it’s likely that cases won’t get to the stage when these kinds of documents would be required to be turned over.  This new barrier posed by the Supreme Court appears to be too high.

Professor Reinert highlighted a further concern raised by the vague new pleading standard, adding, “I don’t know if that’s what the Court was saying, but if that is what the Court is saying, then litigators at least should be worried over whether or not that violates the Seventh Amendment right to a jury trial, because the Seventh Amendment says that juries are to determine facts, not judges. And so if courts start to use this plausibility standard to determine facts on their own, then I think we need to start being worried about whether or not our Seventh Amendment rights are being eroded as well."

Given the bedlam caused by both decisions, Senator Arlen Specter (D-PA), recently introduced a bill in Congress, attempting to restore the standard that existed before Twombly and Iqbal.  The Senator's bill should be given due consideration as a means of curbing the national trend of using technicalities to block access to justice.

Equally important is the public’s role. We the people need honest discourse and a clear understanding of the role of judges and courts in our society. Americans need to understand that what happens in the courtrooms of our nation, however obscure, will inevitably play out in the course of our daily lives.  Even these so-called conservative judges are “making law.”  We, and our media, should be paying attention.

Moving Beyond Partisan Politics: Why Spector’s Switch Might Make A Difference

Federal judges rule on cases that directly impact issues we care about -- such as capital punishment, affirmative action, environmental regulation, and discrimination based on race, sex, or disability. This week, the Court heard arguments in a case questioning the constitutionality of portions of the Voting Rights Act, one of the major pillars of civil rights law. Though intended to epitomize political neutrality, federal court decisions have increasingly resonated with the right in this country. Perhaps this has something to do with the fact that Republican appointees now constitute a majority of judges on 10 of the nation's 13 federal appeals courts.

Congress Pushes Back Against Supreme Court, Returns Civil Rights to People with Disabilities

Cross-posted from the Huffington Post.

Congress, in a stinging rebuke of the Supreme Court, has passed the ADA Amendments Act, which reverses a series of Supreme Court cases that made it nearly impossible to vindicate civil rights enshrined in the Americans with Disabilities Act. In passing the ADA Amendments Act, Congress is finally pushing back at a Court that has been hard at work dismantling our civil rights infrastructure.

Congress Votes To Reverse Rollback, Approves ADA Restoration Act

The House and Senate joined forces today to overwhelmingly approve the ADA restoration act, a key piece of civil rights legislation that will reverse several catastrophic Supreme Court rulings. For almost two decades the Court whittled away the protections Congress enshrined in the Americans with Disabilities Act: In 1999, the Court ruled that people with disabilities could either work or treat their condition, but not both; in 2002, the Court drastically limited the number of people protected by the ADA. Congress last week reasserted itself by reversing those rulings, sending a clear message to the Court, businesses, and the country: You cannot discriminate against people with disabilities.