Pleading for access to justice

By Kristin Loiacono
American Bar Association News Service

CONCORD, N.H.— Harvard Professor Laurence H. Tribe cautioned that he may “offend” during his testimony at the American Bar Association’s public hearing on court funding and access to justice last week at the University of New Hampshire School of Law . While no one seemed to find them offensive, his remarks may have raised a few eyebrows as he called the U.S. Supreme Court “blind” and the justice system “fundamentally broken”.

Tribe, whose career spans four decades and who has served as the Department of Justice senior counselor for access to justice, said justice in America needs to not only be preserved, but also restored.

And by restoring justice, he means it’s time for lawyers to walk the walk.

“Unless we make a real difference in the way we as lawyers are viewed, we will likely hit a low ceiling when we try to squeeze money from state legislatures,” said Tribe.

Tribe was referring to the dire financial situation of most state courts: they are being used more than ever, yet are sparingly funded — and the state legislatures control the purse strings.
Tribe was one of more than a dozen bench, bar and business leaders and citizens who testified before the American Bar Association’s Task Force on the Preservation of the Justice System about the effects of underfunded courts and the need for access to justice.

In particular, Tribe highlighted the need for access to justice for “the struggling middle class.”

He said that part of the problem is that “little of the energy of our profession goes to preventing systemic problems.” Instead, more energy is spent on protecting turf.

To illustrate his point, Tribe singled out a case recently decided by the Supreme Court of the United States — one in which a woman was charged $30.22 in sales tax for the free phones she received for signing a two-year contract with AT&T.

The federal trial court struck down AT&T’s contract language that said people with a dispute had to file suit individually instead of using class-based arbitration.

The 9th U. S. Circuit Court of Appeals agreed and said the woman could proceed with class-based arbitration.

The U.S. Supreme Court disagreed in a 5-4 decision.

“A system that can’t even get it together to resolve a dispute over thirty dollars is fundamentally broken,” said Tribe.

“AT&T’s lawyers drafted the fine print of the contract; the Department of Justice didn’t file an amicus in the couple’s suit; the Supreme Court let technical devotion to the contract and a cramped reading of federal arbitration doctrine blind them,” said Tribe.

He called on lawyers and courts to exert devotion, dedication and energy to look through technicalities to promote access to justice.

David Boies, who co-chairs the ABA’s task force with Theodore B. Olson, asked Tribe what improvements the task force could recommend.

Tribe said state judiciaries that have made improvements should be held up as models.

Courts should not focus on pay-as-you-go systems, ones that focus on increased fees and fines. They should regularize access to justice in the budget, and invest in new technology.

And, he said, the public needs to be reminded that budgeting money for state courts is not an expenditure — it’s an investment and that the money is returned multifold.

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