CLASS CONFLICT BETWEEN ORDINARY PEOPLE AND CORPORATE
POWER
“ . . . the most consequential work of the [John] Roberts [Supreme] Court
in protecting corporate rights has been in cases that have gone mostly
unnoticed including a pair (A.T.&T. v. Concepcion and American
Express v. Italian Colors) in which [Justice Antonin] Scalia wrote the majority
opinion. In these cases, both of which turned on an interpretatinon of a once
obscure 1925 law, the [Supreme] Court ruled that compaaies could require
customers to give up their right to sue in open court, with disputes to be
by a private arbitrator instead. ‘These cases don't get people's attention the way
things like abortion and same-sex marriage do,’ [NYU Professor Arthur] Miller said.
But, if the decisions stand, [Vanderbilt University Professor Brian] Fitzpatrick
argues, ‘they have the potential to literally wipe out the class-action lawsuit.’
in protecting corporate rights has been in cases that have gone mostly
unnoticed including a pair (A.T.&T. v. Concepcion and American
Express v. Italian Colors) in which [Justice Antonin] Scalia wrote the majority
opinion. In these cases, both of which turned on an interpretatinon of a once
obscure 1925 law, the [Supreme] Court ruled that compaaies could require
customers to give up their right to sue in open court, with disputes to be
by a private arbitrator instead. ‘These cases don't get people's attention the way
things like abortion and same-sex marriage do,’ [NYU Professor Arthur] Miller said.
But, if the decisions stand, [Vanderbilt University Professor Brian] Fitzpatrick
argues, ‘they have the potential to literally wipe out the class-action lawsuit.’
“That might not sound like a bad thing - we're always hearing that
Americans are too litigious - but, in an era when regulators are routinely falling
down on the job, lawsuits play a crucial role in deterring corporate misbehavior.
Miller calls them a ‘private enforcement of public policies.’ And when it comes
to big corporations[,] class-action suits are often the only kind that make any
economic sense. If every individual defrauded by a company loses fifty dollars,
the collective harm can be immense, but it's not worthwhile for any single victim
or lawyer to bother. Fitzpatrick says that obstacles to filing class-action lawsuits
make it more likely that ‘companies will not be held accountable for hurting
people for cheating people, for defrauding people, for discrimination against people.’
In that sense, the battle over access to the courtroom is, as Miller puts it, ‘a kind of class conflict
between ordinary individuals and corporate power.' And in that conflict there’s no question which side [Justice Antonin] Scalia was on.”
Americans are too litigious - but, in an era when regulators are routinely falling
down on the job, lawsuits play a crucial role in deterring corporate misbehavior.
Miller calls them a ‘private enforcement of public policies.’ And when it comes
to big corporations[,] class-action suits are often the only kind that make any
economic sense. If every individual defrauded by a company loses fifty dollars,
the collective harm can be immense, but it's not worthwhile for any single victim
or lawyer to bother. Fitzpatrick says that obstacles to filing class-action lawsuits
make it more likely that ‘companies will not be held accountable for hurting
people for cheating people, for defrauding people, for discrimination against people.’
In that sense, the battle over access to the courtroom is, as Miller puts it, ‘a kind of class conflict
between ordinary individuals and corporate power.' And in that conflict there’s no question which side [Justice Antonin] Scalia was on.”
James Surowiecki, “Courting Business,’ New Yorker, March
17, 2016, page 21.
