Election ’08: A Pro-Civil Justice Presidential Platform
The Drum Major Institute for Public Policy would like thank the following people who contributed to the publication of this report: for his work authoring and researching sections of the report during his time at DMI, Cyrus Dugger, former Senior Fellow in Civil Justice at the Drum Major Institute; for her research support, feedback and guidance, Amy Traub, Director of Research at the Drum Major Institute; for their feedback and guidance, Joanne Doroshow of the Center for Justice and Democracy, Chad Marlow of The Public Advocacy Group, Michael Quirk, Civil Justice Fellow Advisor for the Drum Major Institute, and Michael Townes Watson of Horatio Press; and the entire DMI staff for their various and countless roles in the publication of this report.
The Policy Challenges
The civil justice system allows ordinary citizens to advocate for their rights and protect themselves against undue harm from unsafe products, unscrupulous business practices, and abuses of government power, through the public courts. Drum Major Institute for Public Policy’s (“DMI”) report, Election ’08: A Pro-Civil Justice Presidential Platform outlines six key challenges to our civil justice system along with common-sense solutions that would improve the lives of countless Americans. America needs a leader who will not only recognize the significance of these challenges, but who will develop and implement clear and effective policies to address them. Some of policies we offer in this report have already been proposed as legislation and simply require Presidential support. Other policy solutions are the focus of movements growing at the grassroots level. And within this discussion are proposals that will enable the next President to exert meaningful leadership through our federal agencies. All told, the common-sense solutions discussed herein would strengthen our civil justice system and make it fairer and more accessible to Americans.
While our laws guarantee a person a lawyer if he runs the risk of going to prison, no such guarantee exists for a person facing equally dire circumstances like the loss of a home or services that help him feed his family. “And justice for all” remains a promise unfulfilled for low-income Americans who lack access to a lawyer but are entwined in critically important legal matters. Pro bono representation and legal aid services help, but to effectively provide representation to people facing a legal crisis, the next President must create a federal right to counsel in important matters like eviction proceedings, child custody hearings, and proceedings over eligibility for public benefits. A growing movement urges the creation of this right—known as “Civil-Gideon ”—for those who cannot afford a lawyer in matters involving basic human needs, such as matters pertaining to housing, sustenance, safety, health, and child custody.
Our next President can demonstrate his or her commitment to ensuring that all people, regardless of their income, have access to a lawyer in important civil legal matters by establishing and implementing Civil-Gideon. This will require the President’s endorsement of federal legislation establishing the right, allocation of additional funding to the Legal Services Corporation for implementation, and removal of bureaucratic obstacles that prevent legal aid organizations from receiving this funding.
Far too many victims of harms like employment discrimination, medical malpractice, predatory lending, and breach of contract find that they have inadvertently waived their Constitutional right to a jury trial when they signed a contract containing a binding mandatory arbitration “agreement.” Virtually every adult American has signed such a provision, now commonly nestled in the fine print of employment, consumer, and other contracts. Binding mandatory arbitration clauses send disputing parties to a private arbitrator rather than a public court. Unfortunately, however, arbitration’s burdensome costs, lack of procedural protections and the documented anti-consumer bias of some arbitration companies make it particularly harmful to individuals and beneficial to companies.
The Federal Arbitration Act (“FAA”) is a federal law originally designed to allow equally powerful companies to agree to arbitrate, but increasingly used to enforce arbitration between corporations and people, denying individuals their Constitutional right to access the civil justice system. Our next President must support the Arbitration Fairness Act of 2007, which will amend the FAA by prohibiting pre-dispute arbitration agreements in all contracts involving employees, consumers or franchisees, and “in disputes arising under any statute intended to protect civil rights or to regulate contracts or transactions between parties of unequal bargaining power.” Concepts of justice and fundamental fairness demand that American citizens be free from binding mandatory arbitration contracts in their consumer, employment, and service agreements.
The United States Constitution’s Supremacy Clause provides that when federal and state law directly and irreconcilably conflict, federal law prevails. Where there is no direct conflict, state or local law applies, unless Congress explicitly states that it should not. The preemptive power of federal law has been a major force for positive change at various points in our nation’s history. Increasingly, however, federal agencies have been refashioning preemption law into a tool for loosening regulations and eliminating monetary awards in legal claims against regulated industries. These tactics have undermined state laws regarding predatory lending, HMO accountability, highway safety, drug safety, and civil rights.
To preserve states’ power to protect the public’s health and safety, the next President should prohibit federal agency leaders from enacting regulations that preempt state protections unless they have received the express authorization of Congress to do so. The President should urge Congress to oppose preemption that would weaken important protections to the public. To that end, the next President should promote a federal anti-preemption bill requiring Congress to express clearly and explicitly whether it intends its legislation to preempt state and local law, and encouraging Congress to consider the effect of preemption on the public’s right to health, safety, and welfare.
Plaintiffs, their lawyers, and even judges face external pressure to move settlements forward -- even at the expense of the public’s right to know about harmful business practices. When parties to a lawsuit decide to settle, a common condition of settlement is that they promise not to disclose important information revealed during the course of the lawsuit. If this information could impact the public’s health or safety, such an agreement creates a conflict between individual compensation and the public benefits that result when the civil justice system is allowed to function as intended. This kind of agreement also unfairly enriches corporations for bad behavior, which they can pay for through settlements while still profiting from continuing the harmful practices.
Our next President should support a federal anti-secrecy law prohibiting judges from approving confidentiality agreements that conceal issues pertinent to public health and safety. This would reduce redundant litigation and give corporations added incentive to engage in responsible and safe business practices. It would also allow attorneys to advocate for their clients’ best interests and eliminate the pressure to encourage clients to accept settlement agreements that compromise the public’s interest. Most importantly, it would protect the American public against unnecessary harm and send the message that public health and safety are more important than corporations’ profits or reputations.
High rates of injuries and deaths due to medical malpractice have created a crisis in healthcare and taken its toll on the economy. The cost to society in the form of additional medical treatment costs, the victims’ lost income, lost household productivity, and victims’ physical disability, is estimated to be between $17 billion and $29 billion per year. Various structural features of the health care system weaken and even remove incentives for hospitals to take measures to improve safety systems. The civil justice system provides the only means for victims of malpractice to hold medical facilities accountable for their injuries. Misguided pushes for tort “reform” suggest that the solution to the malpractice crisis is to restrict patients’ access to the courts. Instead, something must be done to encourage improvements in patient safety and reduce preventable medical errors so that fewer people are injured in the first place.
The next President should allocate funding for electronic medical records and improved patient safety programs, both of which will save the health care system billions of dollars and prevent the occurrence of errors caused by unsafe procedures and systems. These funds should support a national agency dedicated to meeting the challenges of and demand for emergency medical records and improved patient safety systems. The President should also support the implementation of a national mandatory medical error disclosure system, which would equip patients and their families with the information they need about the quality of their care. Support for improved patient safety benefits everyone because it saves lives as well as money.
A 1945 law prohibiting the federal government from regulating or applying antitrust laws to the insurance industry, the McCarran-Ferguson Act, has created a culture of opportunism in the insurance industry, where a growing pattern and practice of bad faith claim denials have produced record-setting profits for companies and decreased protection to consumers. Something must be done to protect responsible, forward-thinking Americans who invest their earnings in insurance policies only to face the same uncertainty and vulnerability as those who never had insurance at all. The next President should support the repeal of the McCarran-Ferguson Act and the establishment of national “bad faith” legislation that would protect policyholders against the unfounded rejection or improper resolution of their insurance claims. This legislation should create incentives for insurance companies to act in good faith, such as imposing civil penalties on insurance companies that deny claims without good cause.
The public deserves a national leader who is concerned about their rights. Election ’08: A Pro-Civil Justice Presidential Platform should launch a national conversation on how to ensure that the next President is committed to preserving Americans’ access to the court system, establishing more effective government oversight, and curbing irresponsible corporate behavior. Such a commitment will require that he or she prioritize the needs of American citizens, and their rights as consumers, employees, and patients, above the needs of corporations and industry trade groups. The proposed solutions are common-sense policies that our next President must champion in order to improve the lives of Americans.
Presidential races are an exciting time for our country, offering an occasion for voters to reflect upon the values and principles that should guide our next leader as he or she addresses America’s most pressing challenges. Election 2008 provides hope that the next President will champion the causes of citizens, consumers, and communities through effective and fair policies. America needs a leader who will fight to preserve citizens’ civil and consumer rights while encouraging a responsive government and ethical, socially responsible business practices. America needs a pro-civil justice President.
At the forefront of the challenges our next President will face is the task of protecting Americans from unsafe products and unscrupulous business practices. Every day, the news headlines discuss a new food, medical device, pharmaceutical, or other product that consumers have trusted as safe, but which has harmed people or even ended lives. Sometimes these products comply with governmental regulations, and other times they do not. In either case, consumers need a means to hold corporations accountable for injuries over which they had no control. To meet this task, the next President must focus on improving the civil justice system.
The civil justice system allows citizens to advocate for their rights and protect themselves against undue harm through the public courts. It also provides meaningful incentives for businesses to pursue profits responsibly and legally and for governmental entities to function adequately: by avoiding harm to consumers, employees, and others, they avoid the financial and reputation-related consequences of being taken to court. Thus, the civil justice system ensures that everyone, even powerful corporations and our government, abides by the rule of law. It promises everyone, even average American citizens, access to justice.
Precisely because it protects people against corporate and governmental abuse, our civil justice system is under attack by corporate trade groups and the politicians they fund. Our current President ran his campaigns under the banner of tort “reform,” working aggressively to make it difficult for victims of corporate and governmental wrongdoing to find redress through the civil court system. Tort “reform” measures have chipped away at the substance of civil and consumer rights by placing limits on what a jury can award an injured plaintiff, allowing defendants to require plaintiffs to settle cases in secret even when this means hiding important information, and even keeping some aggrieved parties out of the courthouse altogether.
Who benefits from this attempt to dismantle the civil justice system? Parties like the home contractor that built uninhabitable homes yet never had to go to court; the hospital that misdiagnosed, mistreated, and disfigured a patient because of negligence, but barely felt any economic repercussions thanks to limits on jury awards; and the employer that broke federal law and fired its employee for his military status, but was able to stay out of federal court and go to a biased private arbitrator to settle the dispute in its favor.
The Drum Major Institute’s Pro-Civil Justice Presidential Platform outlines challenges in the civil justice system. These include: ensuring that Americans have access to adequate representation and to the courts; preventing corporations from hiding important information from the public through secret settlement agreements; preserving states’ power to protect their citizens’ rights; ensuring that the federal government properly regulates powerful industries; and improving patient safety so that fewer patients ever have to step foot in a courthouse, while preserving that option for those who need it. It is our hope that identifying these challenges will open up a focused discussion among the candidates as well as among voters on how to improve Americans’ lives by restoring their ability to advocate for their well-being.
This report also recommends common-sense policy solutions that will restore the promise of justice to the civil justice system. Some solutions involve acts of Congress that will require the next President’s leadership, while others will require the President’s commitment to increasing accountability in the federal agencies. All solutions will require the President’s commitment and support. Perhaps most importantly, these solutions also require that American voters ask candidates to stand for the public and then hold them accountable for fulfilling their promises.
The Platform is discussed further in the links below, or browse the links in the Table of Contents on the right.