Legal scholars are becoming more aware that actual trials in federal courts have decreased dramatically since the 1960's. Suja Thomas discussed this trend in a recent speech at Seattle University to mark the 25th anniversary of the summary judgment trilogy. See Workplace Prof report. Prof. Thomas mentions a couple of developments leading to this trend: the rise in arbitration and the summary judgment emphasis in federal courts. See her paper.
She mentions her own experience with arbitration when she and her husband purchased a house. The sale agreement included an arbitration clause. The house had some serious flaws (like no sewer connection). The repairs would cost about $5,600. Yet, the arbitration clause would require them to pay for three arbitrators, typically lawyers, and numerous fees that ranged from hundreds to thousands of dollars. The arbitrator's fees alone would run into the hundreds of dollars per day. All for a $5,600 problem. Because Ms. Thomas is a lawyer, she was able to resolve it much simpler and more direct. She could do her own research into the legal issues. But, for the average homeowner, this would have been a minor catastrophe.
Ms. Thomas mentions a good point regarding these major changes in how we resolve disputes: now, many disputes are not resolved at all and when they are, they are resolved by lawyers and other professionals, not by average citizens. She mentions her own problem with a home builder. She also mentions the case of AT&T Mobility v. Concepcion, 131 S.Ct. 1740 (2011), a U.S. Supreme Court case. The Concepcions had a $30 dispute with AT&T regarding their cell phone bill. The cell phone agreement required them to take it to arbitration. The agreement prevented them from seeking class actions. The agreement allowed them to file suit in small claims court, but the filing fee for small claims court far exceeded the amount of the $30 dispute.
The California Supreme Court found that the e provision preventing them from seeking class action status was unconscionable and not enforceable. AT&T appealed to the US Supreme Court, which affirmed the class action provision, saying that federal law favors arbitration.
This is a crazy result. The $30 dispute would have little value to anyone other than the Concepcions abd possible class action lawsuits. Arbitration would require the Concepcions to pay fees in the hundreds of dollars - just to have their case heard by an arbitrator.
The trilogy of summary judgment cases started the trend toward judicial resolution of cases. As Prof. Thomas points out, summary (or "quick") judgment has become the tool to dismiss cases. The trilogy includes Matsushita v. Zenith, 475 U.S. 574 (1986), Anderson v. Liberty Lobby, 477 U.S. 242 (1986), and Celotex v. Catrett, 477 U.S. 317 (1986). These three decisions made it easier for employers and other to obtain summary judgments, an event that was formerly somewhat rare. Summary judgment means the judge decides the case lacks merit and no jury ever hears the issues. It is resolution by judges.
The Federal Judicial Center has found that summary judgment is granted more often in employment cases than any other type of case. 73% of employment cases result in summary judgment. Other cases see summary judgment 60% of the time. So, judges decide 73% of employment cases. Judges are lawyers. So, like arbitration, we have critical decisions made by lawyers.
Prof. Thomas discusses remittitur. If a federal judge is not happy with a jury decision, he can order remittitur, which is a reduction in the jury verdict. More employment cases see remittitur than any other case. In a study conducted by Prof. Thomas, 63% of the cases ordered to remittitur were civil rights cases.
Prof. Thomas cites one estimate that one-third of all nonunion disputes end up in arbitration.
The trend is toward disputes being resolved by a select, trained but biased dispute "clergy." They are biased in the sense that this "clergy" will know and feel more comfortable with the employer who brings them business. It is an institutional bias. The problem with this arrangement is both constitutional and social. The Seventh Amendment was intended to garauntee each citizen the right to a jury trial. Now, by simply buying a house or applying for a job, we waive that right.
The social problem, says Ms. Thomas, is we are working toward having lawyers and judges decide all important disputes in our lives. I think we all can agree that lawyers look at problems differently than others with different training. I think we lose something when the average citizen is removed from this process.