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Exposing the Assault on America’s Courts

Our constitutional right to a day in court is in the process of being stolen, and no one really knows about it.

That sentence deserves some exclamation points!!

It’s true that when you’re not a lawyer, it might be hard to pay attention to legislation littered with legalese. Especially when our nation is facing attacks on our pillars of democracy on so many fronts right now. We are seeing a lack of ethics and transparency from those holding our highest offices. Congress is moving to repeal the health care law that had put our country on a real, albeit small, step forward toward universal health care. Additionally, our entire system to enact public protections as well as specific government safeguards for health and the environment are under siege.

But to recall your high school civics course, there is one body that is supposed to be there to check and balance the excesses of the legislative and executive branches: The judicial branch.

Scarily, right now all of us are facing the very real possibility of legislation being enacted that would bar the courthouse doors and keep harmed individuals from bringing cases. Without holding hearings, last month the U.S. House Judiciary Committee passed a number of cruel and callous bills, several of which were hurried to the floor for a vote the Week of March 6-10, which as it has been pointed out is, ironically, National Consumer Protection Week.

The bills opposed by Public Citizen include the Fairness in Class Action Litigation Act of 2017 (H.R. 985,) introduced by Rep. Bob Goodlatte from Virginia, that would basically kill the ability to bring class-action lawsuits by limiting the ability for individuals to band together to bring a case unless they have suffered the “same type and scope” of injury as well as creating other significant barriers to class certification. This legislation was combined for the House floor vote with the Furthering Asbestos Claim Transparency (FACT) Act of 2017 (formerly H.R. 906,) from Rep. Blake Farenthold from Texas, which would slow or virtually stop the ability of special bankruptcy claims trusts to provide compensation for asbestos victims suffering with lethal diseases like mesothelioma. And, the FACT Act adds insult to injury for asbestos victims and invades their privacy by requiring public disclosure of personal claim information, including portions of their social security numbers, opening the door to identity theft and possible discrimination.

Other bills on the House Republican anti-justice hit list made very technical changes to the way that courts operate that would keep judges from being able to do their jobs. These bills include the Innocent Party Protection Party Act of 2017 from Rep. Ken Buck of Colorado, and the Lawsuit Abuse Reduction Act of 2017 from Rep. Lamar Smith of Texas. These bills also could make litigation more complicated, costly, and inaccessible to consumers and employees. Another of these toxic bills would affect the ability of harmed patients (including nursing home residents) to be compensated for their injuries. The Protecting Access to Care Act of 2017 (H.R. 1215), introduced by Rep, Steve King from Iowa, would infringe on states’ rights by preempting state medical malpractice rules, which means the federal law would displace or overrule existing state laws.  The bill would keep injured patients from pursuing legitimate claims by limiting when and how cases can be brought and by limiting the maximum allowable dollar amount of compensation malpractice victims can receive for what are called non-economic damages (like pain and suffering) at $250,000. Those sorts of limits brutally impact the most vulnerable among us including children and the elderly. This bill is also incredibly broad: it covers nursing homes, doctors that sexually assault patients, and more. It also lets doctors off the hook for negligent prescribing. The bill is expected to be taken up for a vote by the full House at the end of March or beginning of April.

Given the gravity of the threat to our civil justice system posed by these bills, when the House’s week of votes was announced, Public Citizen immediately sprang into action and working in partnership with many ally organizations, led an organization-wide week-long pushback to the House expected votes on the legislation. Messaging the week as “Defend Your Rights Week” and using the hashtag #RightsAtRisk, we and our allies were able to help change the narrative of this legislation and focus on the real impact to harmed consumers, patients, employees, and others.

As part of the grassroots education component of the Defend Your Rights Week of Action, we hosted Facebook live events, including one with Public Citizen’s founder, Ralph Nader that has been seen more than 5,100 times. We created shareable social media content, sampling messaging, and research on the U.S. Chamber of Commerce’s very expansive (and expensive) lobbying on these bills. We also hosted online events like a Twitter chat with our U.S. Chamber Watch project to discuss how big business is behind these bills to block ordinary people from being able to use the courts, and published an op-ed in the Hill on the trade association’s backing of the bills.  We also published a piece in Huffington post on our recent report, “The Medical Malpractice Scapegoat,” that shows how the real problem in the American health care industry is patient injuries. The report also debunks the often used myth of the supposedly high cost of medical malpractice that is frequently used in arguments by proponents of H.R. 1215.

In the midst of all of the defensive work we were doing, we also used the week to go on the offense. Public Citizen and our allies stood with Senate champs at a press conference to mark the introduction of seven separate pieces of legislation to limit the used of forced arbitration “rip-off clauses,” which is fine print language in contracts that require people to go to private arbitration instead being able to use the public courts to hear their disputes.  Our Facebook live video of the event has been viewed more than 8,500 times. Conservative-leaning news anchor Gretchen Carlson participated in the event and has announced that her life’s mission will be to end forced arbitration.  A worthy goal, Gretchen, we agree!

Even though we don’t expect these good bills to end forced arbitration to go anywhere anytime soon, we do know that the threat from the House Republican leadership to strip us of our legal rights is very real. Most of these bills passed with all Democrats voting against and a good number of Republicans in opposition, including 14 GOP members who voted against H.R. 985.

Luckily, all is not yet lost. In addition to calling your Representative to ask her or him to oppose H.R. 1215, the medical malpractice bill that is expected to come up for a vote in the house in the coming weeks, please contact your senators to tell them to defend your rights!

You don’t have to be one of the many legions of fans of the Notorious RBG (Ruth Bader Ginsberg, for those of us who are less social media savvy) to be a fan of our courts. Our founding fathers sure were, since they enshrined our legal rights in the Constitution.