2015 Symposium – The “War” on the U.S. Civil Justice System
Co-sponsored by the National Civil Justice Institute and Emory University School of Law
October 15, 2015, Atlanta, Georgia
Emory Law Journal Vol. 65, No. 6, containing final symposium papers.
VIDEO of Panel 1: Disappearing Courts: Diminishing Use of and Access to Civil Litigation
VIDEO of Panel 2: Tort “Reform” and its Impact on the Development of U.S. Law
A half-century ago, the U.S. civil justice system was a much-admired, well-organized process for resolving disputes, generally in public, before juries and independent judges. Today, the system and its participants are often ignored or vilified, public trials are becoming a rarity, many judicial processes occur out of the public eye, and all but the best-resourced litigants are effectively denied full access to the courts and assistance of counsel. The mere act of filing a claim is often avoided by citizens or is rendered either impractical or outright impossible. The important role historically played by litigation in securing private and public rights, checking corporate and personal abuses, and righting wrongs has been seriously impaired.
Has this been a natural evolutionary process of our legal system, or has “war” been declared on the civil justice system, with public accountability seriously undermined?
The major changes have included:
- a marked decrease in court filings and public trials;
- a vast increase in the use of court-annexed or private alternative dispute resolution, often imposed through adhesion contracts and conducted in secret proceedings that leave no public record;
- changes to court rules that predominantly benefit one side, often imposing high costs on litigants early in the litigation process and effectively discouraging such litigation;
- aggressive motion practice intended to avoid decisions on the merits;
- routine use of protective orders, file sealing, and confidentiality “agreements” that keep civil litigation out of the public eye and undermine its deterrent functions;
- frequent involvement of federal and state legislatures in limiting the powers of the civil courts through such mechanisms as preemption, creation of immunities for favored industries, shortened statutes of limitation, statutes of repose, limits on damage awards and other intrusions on the function of civil juries and the discretion of judges, cost-shifting regimes that threaten to bankrupt ordinary citizens if they dare to enter into litigation, jury fees and/or lack of funding for juries and jury trials that undercut the right to trial by jury;
- underfunding of the courts; and
- severe limitations on the ability of groups of similarly situated citizens to aggregate small claims in class actions against larger, better-funded entities.
There is growing evidence that these changes do more than make civil litigation difficult—they stifle claim-making entirely, thus providing increasing protection for better-funded entities to act without the threat of accountability within American society.
The National Civil Justice Institute is a national legal “think tank” created by pioneering members of the trial bar and dedicated to ensuring access to justice for ordinary citizens. Through its activities, the Institute works to give lawyers, judges, legal educators and the public a balanced view of the issues affecting the U.S. civil justice system.
Emory University School of Law
Founded in 1916, Emory University School of Law is an American Bar Association (ABA) nationally accredited law school. Consistently ranked as one of the premier law schools in the United States, Emory Law offers exceptional doctrinal and practical legal education with signature programs in advocacy, transactional law, technology and IP law, law and religion, and vulnerability studies. For more information on Emory Law, please visit law.emory.edu.