Our civil courts are vital to the promotion of a fair economy for all Americans. They hold the potential to mitigate the gross social and economic inequalities that mark our society, curtail the worst excesses of our economy, and correct the manifest weaknesses of regulatory standards. Accordingly, Americans from all walks of life expect policymakers to remove improper barriers that block citizen access to the courts. Unfortunately, many lawmakers are engaged in a decades-long campaign aimed at hobbling the effective functioning of the civil courts. They have attempted to prevent people from using the courts to right wrongs that have been done to them by:
Barring the courthouse door through the use of forced arbitration and onerous requirements that deserving plaintiffs must satisfy before they are eligible to bring a claim;
Dividing and conquering plaintiffs by preventing or limiting access to class action litigation; and
Shifting the burden to the victim by arbitrarily capping the amount or type of damages available to prevailing plaintiffs.
Too many people struggle with economic circumstances and other disadvantages beyond their control that make it difficult to recover from harms caused by the irresponsible behavior of others. In a fair economy, all Americans would have a reasonable opportunity to achieve their full potential without the burden of being injured by others. When operating without undue constraints, civil courts offer people a viable avenue for recovering from physical and economic injuries imposed on them by the unreasonable actions of others. Inequality in the United States – inequality of wealth, opportunity, and power – has been at the center of debate on many issues in recent years. In fields as diverse as criminal justice, tax policy, environmental law, urban planning, and labor law, advocates are finding common ground in a shared vision of a fair economy that functions to mitigate inequality and ensure all Americans have the opportunity to achieve their full potential.
Advocates are finding common ground in a shared vision of a fair economy that functions to mitigate inequality and ensure all Americans have the opportunity to achieve their full potential.
The U.S. civil courts, working in conjunction with our advanced regulatory programs, have long been great “equalizers” in our society. When the courthouse doors remain open to everyone, regardless of social or economic standing, even the wealthiest individuals and the largest and most powerful corporations can be held accountable. Our courts provide an orderly process for victims to seek compensation when they are injured, thereby restoring victims’ freedom and opportunities.[i] And the resulting decisions about liability help govern our interpersonal actions, incentivizing responsible behavior and thus preventing or avoiding future injuries. These protections, alongside those created by regulatory institutions, ensure that economic gains are responsible rather than reckless, and productive rather than exploitative.
For our courts to function effectively, we need broad and meaningful access for all Americans. In this report, the term “civil justice” refers to holding people and corporations accountable for their actions (or in some cases, their inaction) through laws and procedures that ensure fair compensation for anyone harmed. Courts are the main venue in which individuals and their attorneys seek redress for their injuries and accountability for wrongdoing. As the case studies and analysis contained in this report show, the pursuit of civil justice is intertwined with regulatory policy, public health protections, and other important tools for addressing inequality.
Markers of Economic Inequality in the United States
40 percent of our country’s wealth is in the hands of just the top 1 percent of America’s wealthiest households – the greatest concentration of wealth in at least the last 50 years.[ii]
Over the last two decades, the highest-earning workers consistently saw the greatest increases in wages, while those toward the bottom typically saw the smallest increases.[iii]
In 2016, the median wealth of white households ($171,000) was ten times greater than that of African American households ($17,100) and eight times greater than that of Hispanic households ($20,600).[iv]
In 2016, women experienced a gender wage gap of roughly 20 percent, earning about 80.5 cents for every dollar earned by their male counterparts.[v]
Forced Arbitration: Limiting Access to Justice for Historically Disadvantaged Groups
The Economic Policy Institute found that while more than 60 million workers are subject to forced arbitration clauses in their employment contracts, the prevalence of these clauses is greater among low-wage jobs and in those industries that employ disproportionately large numbers of women and African Americans.[vi]
Workers in the restaurant industry – in which lower-income women and women of color are disproportionately employed compared to the rest of the economy – experience alarming rates of workplace sexual harassment.[vii]
As the prepaid credit and debit card industry has grown in recent years, its customers have endured a multitude of problems, including fraudulent fees and unreliable service.[viii] The Consumer Financial Protection Bureau (CFPB) found that such clauses appeared in 92 percent of contracts for prepaid credit and debit cards.
[i] Sidney A. Shapiro & Robert R.M. Verchick, Inequality, Social Resilience, and the Green Economy, 86 UMKC L. Rev. (forthcoming) (manuscript on file with authors).
[vi] Alexander J.S. Colvin, The Growing Use of Mandatory Arbitration: Access to the Courts is Now Barred for More Than 60 Million American Workers 2 (Econ. Pol’y Inst., 2018), available at https://www.epi.org/files/pdf/144131.pdf.