It is getting harder and harder to be a plaintiff in a civil litigation, a recent study suggests.
Penn Law School professor Stephen Burbank and Sean Farhang, a professor at the University of California, Berkeley, recently published an article demonstrating that over the past 50 years, conservative politics have made it more difficult for plaintiffs to file suit in federal courts.
This difficulty stems from changing regulations in the U.S. with regards to private enforcement — the ability of an individual citizen to sue under civil law — which have increasingly become unfavorable for plaintiffs.
Burbank explained that private enforcement arose in the 1960s as Congress introduced statutes, like allowing the federal government to subsidize attorneys’ fees for poor plaintiffs, that encouraged people to sue in federal courts. For example, in a racial discrimination case, a victim might not be able to find a lawyer because he couldn’t afford to pay for one. However, since Congressional legislation ensured that plaintiffs could afford attorneys, people started to sue more and an industry of private attorneys took form, Burbank said.
Since the 1970s, as Republicans increased their presence in the federal government, private enforcement became more restricted. In their research, Burbank and Farhang found that U.S. Supreme Court decisions between 1970 and 2013 were increasingly anti-private enforcement.
Burbank and Farhang’s research also indicated that the increasingly conservative ideological makeup of the Advisory Committee on Civil Rules , which is responsible for drafting the Federal Rules of Civil Procedure, has further limited a plaintiff’s ability to enforce federal rights. The co-authors presented data showing that over the past 40 years, members named to the Advisory Committee by Chief Justices of the United States — all of whom were Republicans — were more likely to have been themselves federal judges appointed by Republican presidents. The practitioner members of the committee have also become more conservative over the years, with a shift from attorneys representing individuals, who are generally plaintiffs, to lawyers representing corporations, which are more frequently defendants.
Burbank mentioned that this September, the Judicial Conference of the United States will consider a series of amendments to the Federal Rules of Civil Procedure aimed at further reducing the amount of discovery, a pre-trial phase in a lawsuit in which a plaintiff or defendant can obtain evidence from the opposing party. Discovery is essential to private enforcement.
Based on his findings, Burbank concluded that scales have shifted against plaintiffs not because of changes in administration and statutes, but due to changes in the Federal Rules of Civil Procedure and the Supreme Court decisions interpreting those rules.
Burbank noted that his research is important to college students, pointing out that young people should learn about the importance of private enforcement in American society, especially considering that people nowadays are constantly exposed to anti-lawyer propaganda.
“Students one day will be in a position to affect public policy,” Burbank said. “Public policy about the role that litigation does and should play in this country is an important question in which all informed citizens, especially college students, should be interested in.”
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