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Open the Door and Turn On the Lights—A Commentary by Judith Resnik

The following commentary was posted on Slate.com on May 21, 2010.

Open the Door and Turn On the Lights
By Judith Resnik

The Supreme Court recently announced that it was closing its front door. The court meant that literally: Instead of entering by way of the grand staircase on the western plaza, visitors are routed to a side entrance for weapons screening.

Next Tuesday, Congress will hold a hearing about another facet of access: whether to build more federal courthouses. Judges have sought to add space, but congressional investigations have questioned the need for it. One study looked at seven federal districts and found that the lights were on in courtrooms only about half the time. Of every 100 civil cases filed each year, less than two go to trial. And strikingly, despite the judiciary's prediction in 1995 that by now, more than 600,000 cases would be in federal courts, filings have been almost flat for the decade, averaging about 325,000 civil and criminal cases a year.

Closed doors, dark courtrooms, and fewer filings capture a good deal about the current state of federal law. A long list of recent technical rulings (about pleadings, immunity, and private rights of action) now limit access by making it hard to get into court.

One series of particularly distressing decisions prevent many consumers and employees from bringing lawsuits against companies and employers. If your cell phone and credit cards are like mine, they come with tiny-print contracts that have mandatory arbitration clauses. These form contracts bar you from going to court even if you claim that your rights under federal statutes have been violated. For example, if you think your credit card company failed to disclose some information, you can't file a "truth-in-lending" lawsuit. Instead, that contract authorizes companies to require use of a "Dispute Resolution Program" it selects.

And it is not only people buying goods and services to whom these kinds of contracts are handed. If you apply for a job, the application may also require employees to waive their rights to court before they even get an interview. Some contracts also ban "class action arbitrations"—so that a consumer or employee with a claim in a low dollar amount has to go it alone. Without the ability to join with others, it is hard to find lawyers to take the case.

Many countries don't enforce these contracts, which are described as "adhesive" because you are stuck. People with little bargaining power have no choice but to sign what a company puts before them. Once, the U.S. Supreme Court had that view too. For decades, the court gave a limited reading to the Federal Arbitration Act, passed in 1925 to encourage commercial arbitrations. The court concluded that the act did not, for example, bar stock purchasers from suing their brokers just because of a form waiver signed before a problem even existed. Employees, too, could bring individual discrimination claims to court, even if their unions had entered into collective bargaining agreements.

But in a series of recent decisions, the justices upheld these one-sided contracts, as long as the company-selected private arbitration program was an "adequate" alternative. In 2001, the court ruled (5 to 4) that an employee alleging discrimination under California law had to go before an arbitrator because he'd signed a job application. In 2009, the Court concluded (5 to 4) that employees under a collective-bargaining agreement lost their individual rights to go to court for age discrimination claims, even though they had not personally signed the agreement

And about a month ago, the Court closed another door. A panel of three arbitrators looked at a form maritime contract that did not mention class arbitrations. They ruled that a class antitrust arbitration (following a criminal investigation for price fixing in shipping) could proceed. But five justices held that a silent contract ruled out that group-based process.

Arbitration programs are supposed to be substitutes for courts. But they lack the critical feature of an open door. Instead, arbitration programs are entirely private. Several commercial "justice services" prohibit attendance by anyone other than the parties directly involved. The public can neither watch these judicial surrogates in action nor know who is systematically winning and losing.

Shuttling claimants to private judging is in tension with the traditions from which our justice system emerged. In North America, the public has had the right to watch court proceedings since early Colonial times. The 1676 Fundamental Laws of West New Jersey's charter provided "[t]hat in all publick courts of justice for tryals of causes ... any person or persons ... may freely come into, and attend ... that justice may not be done in a corner nor in any covert manner. ..."

A century later, state constitutions guaranteed such openness. The 1777 Vermont Constitution and the 1792 constitutions of Delaware and Kentucky offer examples, proclaiming that "all courts shall be open."

The federal Constitution includes the phrase "open court" in its (little-read) section on treason. In addition, federal rights for criminal defendants to a speedy and public trial, plus rights to civil juries, the First Amendment, and principles of due process protect public access to both civil and criminal trials and to pretrial hearings and court records. If you can make it in the courtroom door, the Supreme Court insists that what happens is open. This term, it overturned a state judge's exclusion of a lone spectator from a jury voir dire.

At the same time, the court's closing out of many claimants is getting congressional attention. In 2002, lawmakers exempted car franchises from being bound by contracts to arbitrate claims against manufacturers. A few years later, Congress passed another act, protecting farmers dealing with large agricultural purchasing conglomerates. Last fall, more than 25 members of the House of Representatives proposed doing the same for employees and consumers in an "Arbitration Fairness Act."

In their objection to closing the Supreme Court's main entrance, Justices Stephen Breyer and Ruth Bader Ginsburg noted that people approaching it were greeted by the words "Equal Justice Under Law," inscribed to represent "the ideal that anyone in this country may obtain meaningful justice through application to this Court."

Reopening the front entrance would be one small symbolic step (44 marble ones, actually) toward welcoming us all in. And if Congress reversed the court's recent rulings enforcing adhesive contracts that lock people into arbitration, the lights would go on in more courthouses across the country.

Judith Resnik is the Arthur Liman professor of law at Yale Law School.