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« The Right of Access, the Right to Counsel | Main

How Legal Rules Shape Access to Justice


Michael Kugler[1]

In the How Legal Rules Shape Access to Justice panel, each panelist addressed problems with legal rules, and how interpretation of those rules has limited access to courts and therefore to justice. While each panelist focused on a distinct area of law, or related legal rules, there was inevitably a good deal of overlap.

Professor Gene Nichol, the Director of the Center on Poverty, Work and Opportunity at the University of North Carolina, addressed the case of Arizona Christian School Tuition Organization v. Winn.[2] In Nichol’s view, the Court’s failure to extend the same legal standing of Flast v. Cohen[3] to the plaintiffs in this case was a supreme injustice. In Nichol’s words “Winn is another step in the assault on the establishment clause and taxpayer standing.” He argued that in Winn, the Supreme Court not only denied access to justice, but it provided willing legislatures a ready and obvious path to shield religious organizations while supplying them with millions of dollars. Winn, according to Nichol, provides legislatures with a roadmap on how to provide money to support religious undertakings while avoiding constitutional review. Nichol was adamant that this is tantamount to throwing the power of the state behind religious endeavors but denying anyone access to challenge the move. He pointed to Justice Kagan’s dissent, agreeing with her that the court’s decision destroys taxpayer standing. Yet, he continued, saying the court “shoulders no real responsibility to explain to us why.” Pulling no punches, Nichol concluded with a scathing indictment of the case by saying, “it’s rare for the Supreme Court of the United States to offer guidance in judicial subterfuge.” In his view, however, that is precisely the effect of Winn.

Professor Suja Thomas, from the University of Illinois College of Law, has focused her research on the meaning and application of the Seventh Amendment. In her view, summary judgment and remitter are two tools that courts are using that are not only unconstitutional under the Seventh Amendment, but also serve to deny access to justice. She began by revisiting the language of the Seventh Amendment. It provides that:

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.[4]

She continued that the Supreme Court has traditionally held that, under the Seventh amendment, a determination of whether or not there should be access to a jury trial is predicated on the English common law of 1791. If the common law of 1791 would have viewed the case as one of legal rights, a jury trial would be warranted. If the case was one of equity, a jury trial would be denied. Taking her cue from the Supreme Court, Thomas looked at the English common law of 1791 to determine whether it would have allowed judges to issue orders of summary judgment or remitter.

Remitter is the practice of judges reducing the amount of a jury verdict upon motion from the defendant. The jury award is reduced to an amount that, in the judge’s view, a reasonable jury could find. Thomas argues that remitter did not exist under the common law of 1791 and therefore should not be permitted in light of the Seventh Amendment. With remitter, a judge gives the plaintiff the option of either accepting the reduced award or accepting the judge’s order for a new trial. Thomas rejected the argument that the offer of a new trial satisfies the Seventh Amendment. Rather the option of a new trial is a false choice because most plaintiffs accept the reduced award rather than proceeding to a new trial. In most cases, as Thomas pointed out, very few plaintiffs go forward with a new trial. Moreover, Thomas argued if no reasonable jury could return an award greater than the reduced amount, then proceeding with a new trial would be ridiculous. The new trial would feature a reasonable jury that would award a lesser amount, or worse, rule for the defendant.

Likewise, Thomas attacked the practice of summary judgment for denying access to courts. As with remitter, Thomas pointed out that summary judgment was not part of common law in 1791. Rather, the only decision that judges could make based on sufficiency of evidence in 1791 was whether or not to order a new trial. Summary judgment is granted by judges if no reasonable jury could find for the nonmoving party. However, Thomas pointed out that the courts vary in their use of the word “jury” and stray into the use of “juror” which further muddles the standard of the case and provides lack of uniformity. This is part of Thomas’s larger critique that judges are basing their decisions on what they think of the evidence and what they think is “reasonable,” rather than what a reasonable jury would think.

Thomas argued that both remitter and summary judgment are empowering judges and weakening the power of the jury. The problem with that, in her view, is that unlike the balance of power between states and the federal government, juries have no ability to battle judges to try to maintain their power. According to Thomas, these rules are becoming entrenched, permanently weakening juries, and creating less access to justice and jury trials. Thomas argued that restoring the power of the jury, and limiting the use of remitter and summary judgment, would restore the justice system to what the Founding Fathers had envisioned when they wrote the Seventh Amendment.

Suzette Malveaux, a professor of civil procedure at Catholic University, focused her presentation on the Federal Rules of Civil Procedure. While neutral in theory, the courts’  interpretation and application of these rules can deny access to justice. She pointed to the heightened requirements for pleadings, the difficulty of certifying a class for class actions, and the forced acceptance of arbitration through adhesive contracts, as ways in which access is being denied.

In terms of pleadings, Malveaux pointed to the decisions in Bell Atlantic Corporation v. Twombly[5] and Ashcroft v. Iqbal[6] as ways in which the Federal Rules have been manipulated to deny access to justice. In particular, she argued that the court’s shift away from pleadings that are “plausible” to pleadings that must be “possible” sets a much higher bar and creates more dismissals before the cases even get to discovery. In her view, this problem has been compounded by lack of clear guidance as to what “plausible” means, thus creating unpredictability, lack of uniformity, and confusion. Moreover, she pointed out that there is information asymmetry because defendants often have greater access to the information sought. It is difficult for plaintiffs to make a clear claim without discovery, but without making a clear claim, they cannot get to discovery. The only way to get to “plausible” pleading is through the facts that plaintiffs need from discovery, and, because they are denied that discovery, their complaints die on the vine.

Even if plaintiffs make it past the pleading stage, Malveaux argued, their complaint may still be barred because they are unable to bring a class action suit or be certified as a class. The bar to class action, in her view, denies access to justice because employers can mask discrimination on an individual basis that would otherwise be apparent in a class action. Class action is important for access because it is easier for plaintiffs to retain counsel for small value claims that they otherwise have difficulty finding representation. She did acknowledge detractors who say the risk of financial exposure for companies facing class actions is too coercive. However, she argued the greater risk is to individuals who are denied access to justice.

Pam Gagel, Assistant Director of the Institute for the Advancement of the American Legal System (IAALS), focused on Rule 1 of the Federal Rules of Civil Procedure in her presentation. She argued that while the rule promises speedy and inexpensive determinations, the reality is that plaintiffs get little of this. In her view, a large bar to access is simply the cost of discovery and the pretrial process. Lawyers are turning away plaintiffs that may have legitimate claims, simply because taking the case is cost prohibitive.

She argued that one solution is to move towards fact pleading, rather than notice pleading, and pointed to Oregon as an example of the success of this approach. Gagel believes that notice pleading leads to expensive discovery and that this is a significant impediment to access. She pointed to a number of pilot projects around the country supporting fact based pleading. New Hampshire is piloting a project with two courts that are engaging in fact based pleading, limited discovery, and early trial dates. Utah has adopted a change to its rules of civil procedure that allows for tiered discovery based on the amount in controversy, meaning the extent of discovery is tied to the dollar amount in controversy. Wyoming is also piloting a project which requires involving $50,000 or less to have mandatory disclosures and limited discovery. Gagel pointed to these pilot projects as ways to control the cost of discovery and create more access for plaintiffs. Plaintiffs who would otherwise be denied representation based on financial concerns will now have their day in court. Gagel emphasized that all of this is about “whether through rules and procedures we can make lawyers and clients feel like they don’t have to have a scorched earth policy when engaging in discovery before trial.”

In the question and answer session that followed the presentations, participants discussed the viability of the changes that the panelists suggested in light of the shrinking economy. For her part, Thomas countered that increasing access will not necessarily lead to trials that are more expensive to the state, but rather would simply lead to more settlement. Gagel commented that even if the number of actual trials increased, it would likely be from 1% of cases filed to 2% of cases filed proceeding to trial, as opposed to a massive explosion. Nichol concluded by saying that even if there is an economic impact from the increased access, “it pales in comparison to the larger problem of massive economic dislocation and the dramatic need for legal access to courts.”


[1] J.D. Candidate, 2013, University of Denver Sturm College of Law.

[2] 131 S. Ct. 1436  (2011).

[3] 392 U.S. 83 (1968).

[4] U.S. Const. amend. VII.

[5] 550 U.S. 544 (2007).

[6] 556 U.S. 662 (2009).

References (7)

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  • Response
    This is the way political activity panels make progress. On the off chance that you let some know one and she tells two individuals and they every tell two individuals etc, your agent will see genuine backing for the change you have supported.
  • Response
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  • Response
    Response: www.agpllp.ca
    The privilege of trial by jury should be saved, and no certainty attempted by a jury, should be generally reconsidered in any court of the United States, than as indicated by the guidelines of the normal law.
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