I.
The only way slavery and genocide can exist openly in a society is with the participation of the
government – and indirectly the people. In the United States the final check on tyranny was
supposed to be the judicial department, composed of courts governed by judges whose judicial
power was intended to be checked by juries of citizens.
But a predictable thing occurred when the judges nixed juries (by employing procedural
technicalities to get around their constitutional authority) and mixed with the rich and powerful… The
judges took sides; the wrong side — the side of the rich of powerful against providing justice for the
people. See e.g. Dahlia Lathwick, “This Court Erred: The Supreme Court has almost always sided
with the wealthy, the privileged, and the powerful, a new book argues” Slate (September 30, 2014)
reviewing 2014 book by Constitutional Law Professor Erwin Chemerinsky, The Case Against the
Supreme Court. See also “Do the “Haves” Come Out Ahead over Time? Applying Galanter’s
Framework to Decisions of the U.S. Courts of Appeals, 1925-1988”, 33 Law & Soc’y Rev. 811
(1999); Galanter, Mark, “Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal
Change” (1994).
As my two previous articles on “the evolution of debt slavery in modern times” assert, american
courts have consistently used their Article III judicial power to benefit the rich and powerful at the
cost of providing justice for the people. In the D
red Scott v Sanford ruling the Supreme Court
concluded the entire race of black people was not entitled to seek justice in american courts
because they were merely property which was meant to be bought and sold by wealthy white
americans.
This travesty of judicial review (criticized by President Abraham Lincoln both in the context of
constitutional doctrine and with regard to the Dred Scott case specifically) spawned the great Civil
War which the people had to fight to undo the injustice of the judicial branch. The War cost this
nation the lives of 620,000 people simply because a calloused judicial branch turned its back on that
basic truth that government’s overriding purpose is to achieve justice by protecting the inalienable
rights of all people…
And unfortunately american judges have typically had no clue about the difference between good
and evil or right and wrong or justice and injustice because of their longstanding and unflinching
loyalty to the rich and powerful.
Regrettably… this hasn’t changed.
One of the Supreme Court’s most recent cases perpetuating modern day debt slavery is its
unanimous opinion in Henson v Santander Consumer USA Inc. In that case the Court held the Fair
Debt Collection Practices Act, which was enacted by Congress to prevent “debt collectors” from
using unfair and unconscionable debt collection practices against the consumers, including
homeowners, does not apply to debt buyers. Translation: Debt Buyers can use unfair and
unconscionable practices to collect debts they have purchased for pennies on the dollar and cannot
be held liable for those injuries such practices cause to the lives, liberties, property, and happiness
of the people.
Santander is the modern day moral equivalent of Dred Scott in that it treats debtors as property the
wealthy can abuse. Santander eschews any notions of justice or equity in order to motivate the sale
of bad debt to unethical hedge funds who use every unconscionable trick in the book to attack and
hurt american consumers to collect bad debt.
Congress’ goal in enacting the Fair Debt Collection Act was to prevent unscrupulous downstream
debt buyers from bombarding Americans with bad faith debt collection practices and then the
Supreme Court comes along and tells these creep companies and their soulless lawyers that they
can mistreat the people in order to collect purported debts, which often are not owed.
How does Santander reflect justice or even good public policy?
The obvious answer is it does not. Santander, just like the Dred Scott case, starts from the dubious
proposition that: “[i]t is not the province of the court to decide upon the justice or injustice…” and
then misinterprets legislation to insure the continued redistribution of wealth to the 1%, which has
always been its practice except for a brief period of time when FDR threatened to pack the Supreme
Court in order to squelch this habit.
If it is true (and I think it is) that American courts are not about justice, then we as a people must ask
do we need (or want) Article III courts at all? For as James Madison so famously wrote in Federalist
Paper No. 51:
… Justice is the end of government. It is the end of civil society. It ever has been and ever will be
pursued until it be obtained, or until liberty be lost in the pursuit. …
II.
There is circumstantial evidence the Supreme Court sought to facilitate the impact the 2008
financial collapse. This collapse was utilized to transfer middle class wealth from this Nation’s people
to its Wall Street sociopaths; a plan which the facts suggest has resulted in one of the one of the
most massive genocides ever known. Cf. Miller, Pam, Church of the Gardens Press, El
Abandonado, (2017); The Guardian,”Mortality rate for homeless youth in San Francisco is 10 times
higher than peers” (April 14, 2016); “Homeless die 30 years younger than average (December 11,
2011). See also infra and bibliography, part IV.
The circumstantial evidence against the Supreme Court includes, among other things, an unusual
(perhaps unlawful) change in the Federal Rules of Civil Procedure which occurred in 2007.
28 USC §2072(a) provides the Supreme Court shall have the power to promulgate general rules of
practice and procedure of the United States District Courts. But going through the judicial
rule-making process would have taken more time than was needed to help the bankers.
So in 2007 (just before the 2008 financial collapse) the Supreme Court judicially interpreted
Federal Rules of Civil Procedure 8 and 12(b) in such a way as to give judges almost absolute power
to prevent homeowners’ cases from being decided pursuant to a trial by jury. See Bell Atlantic Corp.
v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S.554 (2009).
The Supreme Court determined in Iqbal and Twombly that to obtain a trial, including a trial by jury, a
party must prepare a complaint which would be plausible to a federal judge. Prior to this time it was
only necessary to establish a possible claim, not one a federal judge found plausible.
The concern over the Supreme Courts unusual change in the rules was palpable. Indeed, it was
immediately criticized by many of this nations most well known and respected legal scholars. See
Arthur R. Miller, F
rom Conley to Twombly to Iqbal: A Double Play on the Federal Rules of Civil
Procedure, 60 Duke L.J. 1 (October 2010); Stephen N. Subrin, Thoma O. Main, T
HE FOURTH ERA
OF AMERICAN CIVIL PROCEDURE, 162 U. Pa. L. Rev. 1839 (June 2014) See also Bibliography
below, section I. And many state court’s refused to fall in line because of the Supreme Court’s
underhanded use of judicial decision making as a basis for changing the rules of procedure for
district courts. See Hawkeye Foodservice Distrib. v. Iowa Educators Corp., 812 N.W.2d 600,
607-608 (2012). See also Bibliography below, section I.
The 2007 rule change had an extremely negative impact on the American people who owed debt,
homeowners particularly.
Many of us believe the new rule was perpetrated by those who knew the result would likely be the
genocide which is still ongoing today.
By 2011 criticism of the Supreme Court’s usurpation of power reinterpreting Rules 8 and 12 had
grown to the point where the Federal Advisory Committee on the Rules apparently felt it was
necessary to ask the Federal Judicial Conference to provide “cover” for the Supreme Court’s
unilateral change in the Federal Rules. The Federal Judicial Center attempted to do so by
suggesting that the rule change had not made much of a difference in having cases dismissed,
except in the area of financial instruments (cases involving American homeowners). See e.g. Joe S.
Cecil, Et. Al., Fed. Judicial Ctr., Motion To Dismiss For Failure To State A Claim After IQBAL:
Report To The Judicial Conference Advisory Committee On Civil Rules (2011)
This is significant because even the Federal Judicial Center had to admit the effect of the
instantaneous rule change on homeowners and others litigating financial instruments was
devastating. See Id., page 14, Table 4 which substantiates that over 91% of claims filed by lawyers
in these type of cases got dismissed under Iqbal/Twombly’s judge-centric plausibility standards.
III.
America’s 21st century court system doesn’t even resemble the judicial department which our
forefathers intended we should have.
The Constitution clearly intended the people would be entitled to trials by jury pursuant to a
traditional common law adversarial judicial system. See e.g. Todd Peterson: R
estoring Structural
Checks on Judicial Power in the Era of Managerial Judging, 29 U.C. Davis L. Rev. 41 (Fall, 1995)((
“[Judges] are limited by prior case law and by congressional statutes. In defending the independent
judiciary, Hamilton expressly relied on the power of precedent as a check on judicial power: ‘To
avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by
strict rules and precedents which serve to define and point out their duty in every particular case that
comes before them . . . .’ The framers did not grant judges the right to exercise their own unlimited
discretion or will instead of judgment.”)
But we certainly don’t have these rights any longer thanks to the Supreme Court, which has
systematically usurped these rights to benefit the rich at the expense of the people.
The government has intentionally transformed the american adjudication process into a system of
judicial tyranny reminiscent of the inquisition, especially for the poor. See Criminalization Justice
Policy Program, Harvard Law School, Criminalization of Poverty (last accessed on October 12,
2017); Rogayah Chamseddine, SPIN, “The Criminalization of Poverty,” (February 6, 2017; Cf.
Stannard, Matt, Occupy.com, “Part I: 34 Ways America’s Legal System Hurts the Poor” (April 22,
2017); P
art II (April 30, 2017)
Indeed, most people get so bludgeoned via abusive federal judicial processes that few can last long
enough to ever obtain a trial. See Scott E. Stafne, scottstafne.com, Scorched Earth Litigation Model,
September 15, 2015. It is no understatement to suggest america’s judicial system kills and/or injures
those who are forced to encounter its abuse. See e.g., C
aught.net & the Pro Se Way (last accessed
October 10, 2017); Huffer, Karin,Legal Abuse Syndrome: 8 Steps for Avoiding the traumatic Stress
Caused by the Justice System (2013).
And I am not the only one who has noticed this nation’s systematic abuse of america’s middle class
by the federal and state judicial branches of government has negated those protections our founders
intended we have against judicial tyranny. See e.g. Jessica K. Steinberg, “Adversary Breakdown
and Judicial Role Confusion in ‘Small Case’ Civil Justice“, 2016 B.Y.U.L. Rev. 899 (2016). (“The
adversary ideal favors a passive judge, but the unrealistic demands of such a paradigm in today’s
“small case” civil justice system have sparked role confusion among judges, who find it difficult to
both maintain stony silence and reach merits-based decisions in the twelve million cases involving
unrepresented parties. This Article contends that the adversary ideal is untenable in the lower civil
courts. Appellate courts and ethics bodies have virtually ignored this problem, with the result that
judges are left to improvise a solution.”
In September of this year well respected Seventh Circuit Court of Appeals Judge Richard Posner,
actually retired because of the unfair treatment other federal judges gave pro se litigants.
Pro se litigants include those people who can’t afford a lawyer to represent them and must
therefore negotiate the byzantine, bizarre, and corrupt federal judicial gauntlet by themselves before
staff attorneys and federal judges who do not like them very well.
According to Posner (and consistent with my observations over the last decade) “most judges
regard [pro se litigants who can’t afford lawyers] as kind of trash not worth the time of a federal
judge.” Because these arrogant judges believe pro se arguments are worthless their appeals are
not decided by federal judges or law clerks, but staff attorneys. Posner reports the judges of the 7th
Circuit simply rubber stamp the decisions of these “staff lawyers” who decide the pro se appeals.
Here is a copy of an interview with Judge Posner which describes his observations in his own
words.
DL: As you’ve explained in several interviews — with the Chicago Daily Law Bulletin, with me f or
these pages, and with Adam Liptak of the New York Times — you resigned in part because of your
disagreements with colleagues about the Seventh Circuit’s treatment of pro se litigants. I know you
discuss this in detail in your new book (affiliate link) — can you offer us a little preview?
RAP [Richard A. Posner]: Pro se litigants, by definition, don’t have a lawyer. This generally means
they don’t have money to hire a lawyer. So they have to litigate for themselves. They’re handicapped
by not having money and not having a lawyer, and they also tend to have limited education. About
half of our appeals are by pro se’s, and about half of those are prison inmates.
When pro se litigants appeal, their appeal papers are given to a staff attorney. We have about 20
staff attorneys who are appointed for two years, and a few supervisors. The staff attorneys tend to
be good students from good schools, hired right after they graduate. Despite their good
credentials, they tend to be hostile to the pro se’s. It’s not their own feelings; it’s that they
sense — correctly — that the judges don’t really care much about the pro se’s, find them
nuisances, and are not interested in them. So that percolates down to the staff attorneys, and
they have a tendency to go against the pro se appeals even when they have apparent merit.
So very often, a staff attorney memo recommending dismissal of the appeal gives rise to a very
short, very rapidly issued order by a judicial panel, not published in the Federal Reporter, that tends
to be perfunctory. One of my former colleagues thinks that two words are enough for an order
dismissing a pro se appeal: “Appeal dismissed.”
I didn’t think the pro se litigants were getting a fair break. I made various s uggestions, all of which
were rejected. I wasn’t making progress in helping the pro se’s. And I didn’t have good relations
anymore with the other judges — not really on a personal level, but we just didn’t see eye to eye on
the pro ses.
So I stepped down from the bench and published my newest book, which is now out: Reforming the
Federal Judiciary: My Former Court Needs to Overhaul Its Staff Attorney Program and Begin
Televising Its Oral Arguments (affiliate link).
(Emphasis Supplied)
Judge Posner, who took the time to review some of these staff attorney’s decisions, correctly
discerned that delegating judicial power to “baby lawyers”, without any meaningful supervision by
active Article III judges, was improper. To me, this is rather obvious!!!
It is important to understand Judge Posner did not resign until after all the other judges on the
Seventh Circuit refused to require (or even allow) these baby “staff lawyers” decisions regarding pro
se appeals to be meaningfully reviewed by active Article III judges, as I believe is required by the
Constitution.
The American Bar Association Journal asked the Seventh Circuit for a comment on Judge Posner’s
accusations. In response Dianne Wood, the Chief Judge of the Seventh Circuit (a liberal appointed
by Bill Clinton) responded:
“First, while [Judge Posner] is certainly entitled to his own views about such matters as our Staff
Attorney’s Office and the accommodations we make for pro se litigants, it is worth noting that his
views about that office are not shared by the other judges on the court, and his assumptions about
the attitudes of the other judges toward pro selitigants are nothing more than that—assumptions.
In fact, the judges and our staff attorneys take great care with pro se filings, and the unanimous
view of the eleven judges on the 7th Circuit (including actives and seniors) is that our staff
attorneys do excellent work, comparable to the work done by our chambers law clerks. We
are lucky to attract people of such high caliber for these two-year positions.”
(Emphasis Supplied)
Significantly, the Seventh Circuit’s response concedes Judge Posner’s point and establishes the
corruption of 21st century american courts. See Brian Vukadinovich, American Thinker”Reforming
the 7th Circuit” (October 19, 2017) Wood admits on behalf of the Seventh Circuit that staff attorneys
are performing the functions of Article III judges in pro se appeals without the same type of oversight
as is provided a judicial clerk wrestling with an appeal where both sides are represented by an
attorney. As Vukadinovich such conduct by the 7th Circuit is just plain wrong and likely
unconstitutional:
Merely saying that the judges who are the subject of Posner’s allegations “don’t share Posner’s
views” about their alleged wrongdoing does nothing to reassure the public that the 7th Circuit’s
attitude toward pro se litigants is as frivolous as Posner has alleged.
Since the issues involve a high matter of public importance, there should be a very thorough
investigation of the 7th Circuit. Federal Rule of Appellate Procedure 4 explicitly states that an
appeal is a matter of a “right.” The rule doesn’t give the judges of the 7th Circuit, or any circuit for
that matter, any discretion in diminishing that right when it comes to a pro se appeal. Furthermore,
the “Standards for Professional Conduct Within the Seventh Federal Judicial Circuit”, item 6,
explicitly states “We will give the issues in controversy deliberate, impartial, and studied analysis and
consideration.” Item 8 states “…that a litigant has a right to a fair and impartial hearing…” A custom
of systematically dismissing pro se appeals hardly meets the threshold standard of “…a right to a fair
and impartial hearing…”
It is a major red flag when judges aren’t even willing to follow the rules of their own court,
and that certainly does appear to be the case with the judges in the 7th Circuit. Systematic
discrimination by judges against a class of people, pro se litigants in this case, is wrong and
against the law. Wood’s public response is not good enough. A grand jury should be
empanelled and the judges and staff attorneys and law clerks should be required to testify
under oath so that a factual determination may be made as to whether or not the judges on
the 7th Circuit are systematically discriminating against the pro se litigants.
Id. (emphasis added)
This admission has staggering repercussions when one realizes most court cases today involve pro
se litigants. See e.g. ABA Law Journal, “86 percent of low-income Americans’ civil legal issues get
inadequate or no legal help, study says” (June 14, 2017); Legal Services Corporation, The Justice
Gap: measuring the Unmet Civil Legal Needs of Low-income Americans (June 2017);
Lawyerist.com, “Measuring the Access-to-Justice Gap: Nearly 70% of All Civil Defendants Aren’t
Represented” (2016) ; ABA Journal, “Can the access-to-justice gap be closed” (2016).
The reality that our courts more often than not decide cases where only one side is able to
effectively present their side to a judge or jury is at odds with those basic tenets of justice the
Revolutionary war was fought to achieve. Clearly, constitutional history establishes that the people
who ratified the Constitution were led to believe the Constitution was designed so judges would not
become judicial tyrants, unchecked by juries and the Congress. See Federalist Paper No. 78.
Yet, that is exactly what has happened.
And scholars the world over who observe the American judicial system quickly appreciate america’s
courts and judges have little, if anything, to do with justice or fairness.
IV.
The “honest to God” truth is America’s Article III judicial department has dismantled those basic
constitutional checks on its power which were established to prevent it from devolving into the
tyrannical judocracy it has become. Looks at the facts. The facts dispute virtually all the myths our
courts perpetuate to make us believe our judicial branch performs its constitutional duties.
●
MYTH: “Only the United States makes routine use of jury trials in a wide variety of
non-criminal cases.” SeeWikipedia.
TRUTH: Less than 5% of cases filed ever get to trial let alone a trial by jury.
●
MYTH: America has an adversarial system of justice where both sides are competently
represented before a neutral judge and jury.
TRUTH: Over half the cases presented to these supposedly neutral judges (who apparently don’t
like or respect 99% of us) are handled by non-lawyers who have no experience with the mostly
counter intuitive archaic rules of procedure and evidence which make litigation more a game than a
search for truth. See Bibliography, Past IV.
●
MYTH: the United States judicial system is based on the common law.
TRUTH : The common law system of precedent has not existed in America for sometime. Compare
e.g. Anastasof v. United States, 223 F.3d 898 (8th Cir. 2000) (Courts are required to make and
follow precedent) with H
art v. Massanari, 266 F.3d 1155 (9th Cir. 2001)(Judges can decide when
they want and if they want to create precedent) with Judge Posner’s observations that today courts
need not even explain their reasons for their decisions by simply stating “Appeal Dismissed”. See
supra.
A recent law review, Unpublished Decisions and Precedent Shaping: a Case Study of Asylum
Claims, 31 Geo. Immigr. L.J. (Fall 2017) considered a decades worth of data following the Supreme
Court absolving federal courts of appeal of the responsibility for creating (and apparently following)
precedent. According to Professor Scott Rempell, the author of the study:
The federal courts of appeal now publish fewer than twenty percent of their decisions. The effects of
depriving so many decisions of precedential value are disputed. Critics believe selective publication
harms law development and distorts legal doctrine, while selective publication’s defenders are
unconvinced that the available evidence demonstrates pervasive problems in need of reform.
Accounting for the flaws and limitations of past empirical assessments, this article provides the
results of a study that was designed to establish a more concrete understanding of how selective
publication impacts development of the body of law. The study draws on a comprehensive
dataset of all asylum cases in the Ninth Circuit that addressed the issue of persecution over a
six-year period. The results show that the court incorrectly perceived how often it reached
certain outcomes in past decisions, because many of the outcomes were buried in
unpublished dispositions. Additionally, many of the rule statements the court applied in
unpublished decisions contradicted rules it promulgated in its public decisions, which
indicates the “book law” is not completely settled. The court also reached inconsistent
outcomes regarding a significant percentage of its unpublished cases. Finally, panels failed
to address highly germane precedents that losing parties raised in their briefs.…
(Emphasis Supplied)
V.
In case No. 3 of the Nuremberg Trials 16 defendants who were former German judges, prosecutors
or officials in the Reich Ministry of Justice, were found guilty of committing war crimes and crimes
against humanity. The tribunal found, in effect, that while on paper the rights established by the
Weimar Constitution were retained by the Nazis, there was a progressive degeneration of the judicial
system under Nazi rule and that substantially every principle of justice enumerated by prior German
law was violated by the Hitler regime.
The same can be said about about the United States judicial system. Our courts have attacked our
constitutionally protected jury system to the point where it is for all practical purposes now extinct.
The common law is no longer predictable because judges no longer believe their rulings must be
anchored to precedent. Far too many judges act as despots who can berate, belittle, and harm those
who appear in their ostentatious court rooms.
Obviously, if as James Madison postulated justice is the goal of government, our courts and the
other two branches of our government have failed us. We need good competent judges who are
paid to ferret out the truth in a pragmatic way; not baby or senile lawyers awed by their power and
the courtesan legal cabals which seek their favor. If our constitutional system is now dead let’s move
on to one that actually attempts to provide justice for a free people.
Ever wonder how many millions of people the american courts have caused to be evicted since the
Supreme Court made it so easy for them to do so in 2007? Me too.
Unfortunately, looks like the government doesn’t keep very good track of this. See Bibliography,
Parts V & VI. The last estimate I recall reading in a non-government article was that as of 2013 over
30,000,000 people had been forced from their homes. Unfortunately, that article appears to have
been scrubbed from the internet. But such numbers are consistent with a May 2015 article in the
Washington Post, which states:
The scale of this entire foreclosure migration is deceptively large. The 10 million households that
lost their homes dwarf the number that left the Great Plains during the Dust Bowl (that was about 2.5
million people). In fact, it is larger than the 6 million blacks who moved north during the Great
Migration — a movement that spanned decades.
Emily Badger, “How the Housing Crisis Left Us More Racially Segregated,” Washington Post,
May 8, 2015.
Next question. What happens to the people our courts force onto the streets? Just as you would
expect, there are very few recent studies on this as well.
However, way back in 2011 when courts were accelerating foreclosures and homelessness,
virtually everyone knew the banks had rigged the system and were blatantly using forged documents
to take people’s homes. (see e.g. 2011 6
0 Minutes programs and C
ongressional Hearings). Turns
out the courts didn’t care about either the forgeries or the health crises, including deaths, such
injustice was causing the people. See Bibliography, Part V.
The new research found that the average homeless person has a life expectancy of 47, compared
to 77 for the rest of the population: a startling difference of 30 years…
NHS choices; your health, your choices “Homeless die 30 years younger than average (December
11, 2011).
So let’s assume based on the data (and lack of data) set forth in Part V of the bibliography that at
least 30,000,000 people have been evicted by the federal and state governments from their homes.
Of that number only a third of these people are able to escape homelessness. Cf. Wall Street
Journal, M
any Who Lost Homes to Foreclosure in Last Decade Won’t Return — NAR (April 5, 2015)
This means our courts and governments have robbed these people collectively of 60,000,000 million
years of life. This wouldn’t happen in a just society of free people where the banks had already been
bailed out of these losses which were a result of their own criminal behavior. Mark Collins, Forbes,
“The Big Bank Bailout” (July 14, 2015)
I have written about american judges crimes against humanity. See e.g. Stafne, Scott, “Free
House or Death Sentence?”, scottstafne.com (April 27, 2017) , See also Stafne, Scott, “Happy
Thanksgiving – 2016” scottstafne.com (November 23, 2016) . Cf. Stafne, Scott, “Judicial Review – A
Slippery Slope”, scottstafne.com (August 21, 2014). Others have also explained that the reasons
American law is so similar to that created by the Nazi’s is because Germany’s judges and lawyers
used American law as their example. Bill Moyers interview with James Whitman is a good example.
See, For the Record,“Hitler’s American Model: The United States and the Making of Nazi Race Law”
(October 13, 2017). The interview discusses Whitman’s new book Hitler’s American Model: The
United States and the Making of Nazi Race Law, Princeton University Press (2017)
But no one wants to have to care about their lost neighbors because then we all become complicit
in these crimes by the united states against this nation’s own people.
In United States of America v. Alstötter, et al. (“The Jurists’ Trial”), 3 T.W.C. 1 (1948), 6 L.R.T.W.C.
1 (1948), 14 Ann. Dig. 278 (1948) the Court well stated the gravity of judges relying on false
evidence when imposing death and/or severe sentences on citizens, who have been robbed of their
freedom.
He [the judge defendant] formed his opinions from dubious records submitted to him before
trial. By his manner and methods he made his court an instrumentality of terror and won the
fear and hatred of the population. From the evidence of his closest associates as well as his
victims, we find that Oswald Rothaug represented in Germany the personification of the secret Nazi
intrigue and cruelty. He was and is a sadistic and evil man. Under any civilized judicial system he
could have been impeached and removed from office or convicted of malfeasance in office
on account of the scheming malevolence with which he administered injustice.
Conclusion.
“In a well-functioning judicial system, negotiated resolutions of litigated disputes should reflect not
only the interests of the disputants but also a reasonable approximation of the factual and legal
merits of claims.” Brooke D. Coleman, “THE EFFICIENCY NORM” 56 B.C. L. Rev 1777 (2015) Just
as this observation did not apply in the Dred Scott case it does not apply to the vast majority of those
of us who find ourselves trapped in court proceedings today. This is because our government views
those of us who cannot shell out cash for a court’s favorable ruling as something less than the free
people our Constitution intended would be entitled to justice.
BIBLIOGRAPHY
I. WAS IQBAL PLANNED BY THE COURTS TO FACILITATE FORECLOSURES?
Suja A. Thomas, W
hy the Motion to Dismiss Is Now Unconstitutional, 92 Minn. L. Rev. 1851 (2008)
Artilce can be downloaded from Link
Jeffery Rosen, The New York Times Magazine, “Supreme Court, Inc.” (March 16, 2008)
Arthur R. Miller, F
ROM CONLEY TO TWOMBLY TO IQBAL: A DOUBLE PLAY ON THE FEDERAL
RULES OF CIVIL PROCEDURE, 60 Duke L.J. 1 (October 2010)
Clermont, Kevin M. and Yeazell, Stephen C., “Inventing Tests, Destabilizing Systems” (2010).
Cornell Law Faculty Publications. Paper 201.
Lisa Eichhorn, A Sense of Disentitlement: Frame-Shifting and Metaphor in Ashcroft v. Iqbal, 62 Fla.
L. Rev. 951 (2010).
Robert G. Bone, Plausibility Pleading Revisited and Revised: A Comment on Ashcroft v. Iqbal, 85
Notre Dame L. Rev. 849, 849 (2010) This article can be downloaded from link.
McCurry v. Chevy Chase Bank, FSB, 169 Wn.2d 96, 103 (2010) “[T]his court [Washington Supreme
Court] would be hesitant to effectively rewrite CR 12(b)(6) based on policy considerations. The
appropriate forum for revising the Washington rules is the rule-making process. See Twombly, 550
U.S. at 579, 595 (Stevens, J., dissenting). This process permits policy considerations to be raised,
studied, and argued in the legal community and the community at large.”
Hawkeye Foodservice Distrib. v. Iowa Educators Corp., 812 N.W.2d 600, 607-608 (2012).
“For the most part, state high courts have declined to adopt the new standard announced in
Twombly and Iqbal. See Cent.Mortg. Co. v. Morgan Stanley Mortg. Capital Holdings LLC, 27 A.3d
531, 537 (Del. 2011); Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 424
(Tenn. 2011); McCurry v. Chevy Chase Bank, FSB, 169 Wn.2d 96, 233 P.3d 861, 863-64 (Wash.
2010); Roth v. DeFeliceCare, Inc., 226 W. Va. 214, 700 S.E.2d 183, 189 n.4 (W. Va. 2010). But see
Doe v. Bd. of Regents, 280 Neb. 492, 788 N.W.2d 264, 278 (Neb. 2010). These courts have given a
variety of reasons for refusing to incorporate the new federal standard in their state rules. For
example, the Washington court concluded that the plausibility factor adds a determination of the
likelihood of success on the merits, so that a trial judge can dismiss a claim, even where the law
does provide a remedy . . ., if that judge does not believe it is plausible the claim will ultimately
succeed.
Helen Hershkoff & Arthur R. Miller, Celebrating Jack H. Friedenthal: The Views of Two Coauthors,
78 Geo. Wash. L. Rev. 9, 28–29 (2009);
Kenneth S. Klein, A
shcroft v. Iqbal Crashes Rule 8 Pleading Standards onto Unconstitutional
Shores, 88 NEB. L. REV. 261 (2009).
Stephen B. Burbank, Summary Judgment,Pleading, and the Future of Transsubstantive Procedure,
43 Akron L. Rev. 1189, 1190 (2010);
Kenneth Klein, I s Ashcroft v. Iqbal the Death (Finally) of the “Historical Test” for Interpreting the
Seventh Amendment?, 88 Neb. L. Rev. 467, 471–72 (2010).
“Conclusory” Is Still Quite Elusive: The Story of a Word, Iqbal, and a Perplexing Lexical Inquiry of
Supreme Importance, 73 U. Pitt. L. Rev. 215 (2011) This article can be downloaded from the link.
(“There is a sense in Iqbal that conclusory statements are like procedural pornography so profane
and lacking in quality that they are not entitled to protection of otherwise liberal pleading standards.”
Alexander A. Reinert, Pleading as Information-Forcing, 75 L. & Contemp. Probs. 1, 22–28 (2012);
Hawkeye Foodservice Distrib. v. Iowa Educators Corp., 812 N.W.2d 600, 607-608 (2012).
“For the most part, state high courts have declined to adopt the new standard announced in
Twombly and Iqbal. See Cent.Mortg. Co. v. Morgan Stanley Mortg. Capital Holdings LLC, 27 A.3d
531, 537 (Del. 2011); Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 424
(Tenn. 2011); McCurry v. Chevy Chase Bank, FSB, 169 Wn.2d 96, 233 P.3d 861, 863-64 (Wash.
2010); R
oth v. DeFeliceCare, Inc., 226 W. Va. 214, 700 S.E.2d 183, 189 n.4 (W. Va. 2010). But see
Doe v. Bd. of Regents, 280 Neb. 492, 788 N.W.2d 264, 278 (Neb. 2010). These courts have given a
variety of reasons for refusing to incorporate the new federal standard in their state rules. For
example, the Washington court concluded that the plausibility factor adds a determination of the
likelihood of success on the merits, so that a trial judge can dismiss a claim, even where the law
does provide a remedy . . ., if that judge does not believe it is plausible the claim will ultimately
succeed.
Joe. S. Cecil, Federal Judicial Center, “Of Waves and Water: A Response to Comments on FJC
Study Motions to Dismiss for Failure to State a Claim after Iqbal,” Draft Posted March 19, 2012.
Paper can be downloaded from link.
Howard M. Wasserman, T
he Roberts Court and the Civil Procedure Revival, 31 Rev. Lit. 313, 334
(2012) Article can be downloaded at from link. (noting that Twombly “short circuited a preliminary
discussion of notice pleading by the Advisory Committee”);
Alexander A. Reinart, ABA Human Rights Magazine, “Lurking in the Shadows: The Supreme
Court’s Quiet Attack on Civil Rights: The Supreme Court’s Civil Assault on Civil Procedure, Vol 1,
No. (2015);
Amicus Brief on behalf of Public Justice PC filed with Supreme Court on October 24, 2016 in
support of Respondents in VISA, Inc. v Sam Osborn, which petition was dismissed as improvidently
granted argue Supreme Court has no authority to amend rule of civil procedure without going
through rule-making procedure or alternatively interpreting such rules away. 27-29
II. IQBAL/TWOMBLY BENEFITS CORPORATIONS AND THE WEALTHY AT THE EXPENSE OF
THE PEOPLE.
Stein, Alex and Parchomovsky, Gideon, “Empowering Individual Plaintiffs” (2017).
(“[A]s we show in this Essay, in many key sectors of our economy, suits by individual plaintiffs have
become a rare phenomenon, if not a virtual impossibility. The architecture of liability, by making
causes of action more complex and difficult to prove, while equipping defendants with multiple
defenses, coupled with the fact that large corporate defendants enjoy a vast cost advantage over
individual plaintiffs on account of superior legal expertise and economies of scale and scope, make it
nearly impossible for individual plaintiffs to prevail in court, or even get there. This problem pervades
many industries, but, for the reasons we detail, it is particularly acute in the insurance, healthcare,
medical, and consumer finance sectors.)
Luke K. Norris, “LABOR AND THE ORIGINS OF CIVIL PROCEDURE”, 92 N.Y.U.L. Rev. 462
(2017) Article can be downloaded from link
(“T]his Article argues that the recent transformations in civil procedure both undermine the
economic purposes that were central to the regime’s rise and diminish the ability of diffuse economic
actors to exercise countervailing power – threatening once-enduring procedural commitments.)
Alexandra D. Lahav, A
RTICLE & ESSAY: THE ROLES OF LITIGATION IN AMERICAN
DEMOCRACY, 65 Emory L.J. 1657(2016) paper can be downloaded from link.
(“As in politics and economics, a system that gives too much control to the one percent risks
undervaluing and under-serving the remaining ninety-nine. Using social and political science, the
Article argues that the homogenous policy making of one percent procedure creates sub optimal
results. The Article concludes that the structures giving rise to one percent procedure must be
modified and proposes a set of reforms intended to allow the ninety-nine percent representation in,
and access to, the process of constructing our shared civil litigation system.”)
Professor Alexander Reinart interviews Professor Brooke Coleman of Seattle Law about her her
article “One percent Procedure” at Cardozo School of Law civil procedure workshop. Link is to
recording of that interview.
Jonathan H. Adler, SYMPOSIUM: BUSINESS IN THE ROBERTS COURT- Introduction: Still in
Search of the Pro-Business Court, 67 Case W. Res. L. Rev. 681 (2017)
Sarah Staszak, SYMPOSIUM: “Procedural Change in the First Ten Years of the Roberts Court”.
Cardozo Law Review 38.2 (2016). Web.
Alexander A. Reinert, MEASURING THE IMPACT OF PLAUSIBILITY PLEADING, 101 Va. L. Rev.
2117 Cordozo Legal Studies Research Paper No. 455 (December, 2015) (Article can be
downloaded from link)
American Bar Association, Human Rights Magazin, “Lurking in the Shadows: The Supreme Court’s
Quiet Attack on Civil Rights: The Supreme Court’s Attack on Civil Procedure, Vol 41, No. 1 (2015)
New York Times “Supreme Court Ruling Altered Civil Suits to Detriment of Individuals” (MAY
18,2015)
Scott E. Stafne, scottstafne.com, Scorched Earth LitigationModel” (September 15, 2015)
The degeneration of the american empire’s legal system has been accompanied by litigation
models which rely on the disparity of resources between the parties (not the facts or law of any
specific case) as the primary basis for resolving cases.
It is my observation that the “Scorched Earth” litigation model, named after General Sherman’s
infamous military campaign, is used in virtually 100% of all foreclosure litigation. This model is based
on the business premise that banks and servicers should spend whatever money is necessary to win
so as to deter homeowners (and any potential lawyers who might be inclined to represent them)
from challenging any foreclosure judicially.
I have personally seen this multi-billion dollar industry spend more in litigation costs than the worth
of the houses they are foreclosing on. I have been told by servicers’ lawyers that their clients do not
factor in defense costs for purposes of settling with homeowners (even where the homeowner has
obtained a summary judgment of liability against the servicer) because they want homeowners and
their lawyers to know that they will spend whatever it takes to win in court.
The point they are making is one Americans should contemplate: Are we now living in a totalitarian
society where the courts are rigged and judicial decisions are decided not by the merits, but the
money the parties are willing and/or can afford for litigation?
III. JURY TRIALS ARE VIRTUALLY EXTINCT IN THE UNITED STATES NOTWITHSTANDING
THEY ARE GUARANTEED BY THE CONSTITUTION.
COLLOQUIUM: CIVIL LITIGATION ETHICS AT A TIME OF VANISHING TRIAL: SETTLEMENT IN
THE ABSENCE OF ANTICIPATED ADJUDICATION, 85 Fordham L. Rev. 2017 (April 2017)
Benjamin Weiser, Trial by Jury, a Hallowed American Right, Is Vanishing, N.Y. Times (Aug. 7,
2016)
Honorable Mark W. Bennett, R
EINVIGORATING AND ENHANCING JURY TRIALS THROUGH AN
OVERDUE JUROR BILL OF RIGHTS: A Federal Trial Judge’s View, 48 Ariz. St. L.J. 481(Fall
2016)(Article can be downloaded from link)
Stephen D. Sussman, “35th Annual Conference of American Conference of American Society of
Trial Consultants “Disappearing Civil Trials” pp. 4-16 (2016);
Suja. A. Thomas, “THE MISSING BRANCH OF THE JURY”, 77 Ohio St. L.J. 1261 (2016) Article
can be downloaded from link) (“ In the past, the Supreme Court has used the doctrines of the
separation of powers and federalism to protect the power of the traditional actors including the
branches, while it has not used any similar doctrine to preserve jury authority. At the same time, the
power of the jury has eroded. This article argues that the jury is effectively a “branch” of government
— similar to the executive, the legislature, and the judiciary — that has not been recognized and
protected.”
Brooke D. Coleman, “THE EFFICIENCY NORM” 56 B.C. L. Rev 1777 (2015)
SYMPOSIUM: THROUGH A GLASS STARKLY: CIVIL PROCEDURE RE-ASSESSED:
CELEBRATING THE SCHOLARSHIP OF STEPHEN SUBRIN: Finding the Civil Trial’s Democratic
Future After Its Demise, 15 Nev. L.J. 1523 (Summer 2015)
Stephen N. Subrin, Thoma O. Main, THE FOURTH ERA OF AMERICAN CIVIL PROCEDURE, 162
U. Pa. L. Rev. 1839 (June 2014)
Andre Guthrie Ferguson,”The Jury As Constitutional Identity”, 47 U.C. Davis L. Rev. 1105 (April
2014)
Scott E. Stafne,River City Reader, How Jury Trial Could Have Softened the Blow of the Financial
Crisis (May, 2015)
Scott E. Stafne, scottstafne.com, How the Republic of the United States has been Corrupted (Part
Two – Jury trials)(May 22, 2014)
Honorable Judge William G. Young, (2011)“In Celebration of the American Jury Trial” (2014);
Arthur R. Miller, S
IMPLIFIED PLEADING, MEANINGFUL DAYS IN COURT, AND TRIALS ON THE
MERITS: REFLECTIONS ON THE DEFORMATION OF FEDERAL PROCEDURE, 88 N.Y.U.L. Rev.
286 (April 2013)
Jeffrey W. Stemel, Taking Cognitive Illiberalism Seriously: Judicial Humility, Aggregate Efficiency,
and Acceptable Justice, 43 Loy. U. Chi. L.J. 627 (2012)
Honorable Jennifer Walker Elrod, “Essay, Is the jury Still Out?: A case for the continued viability of
the American Jury?” 44 Tex. Tech. L. Rev. 303 (Winter 2012) (article not available for free down,link
is to Lexis/Nexis, which may charge a fee)
Culhane v. Aurora Loan Servs., 826 F. Supp. 2d 352, 355 *1-3, n.1 (D. Mass. 2011) aff’d 708 F.3d
282 (ist Cir. 2013)
Stephen B. Burbank & Stephen N. Subrin, Litigation and Democracy: Restoring a Realistic Prospect
of Trial, 46 HARV. C.R.-C.L. L. REV. 399, 408 (2011). (The article can be downloaded from the link,
which is to Lexis Advance)
Honorable William G. Young, “A Lament for What Was and Can Yet Be.” 32 Boston College
International and Compararive law Review (2009).
IV. PRO SE LITIGANTS
Jon Goldschmidt, The Pro Se Litigant’s Struggle for Access to Justice: Meeting the Challenge of
Bench and Bar Resistance, 40 Fam. Ct. Rev. 36 (January 2002)
Tiffany Buxton, Foreign Solutions to the U.S. Pro Se Phenomenon, 34 Case W. Res. J. Int’l L. 103
(2002)
Washington Supreme Court, “Washington State 2003 Civil Legal Needs Study” (2003)
Russell G. Pearce, Redressing Inequality in the Market for Justice: Why Access to Lawyers Will
Never Solve the Problem and Why Rethinking the Role of Judges Will Help, 73 Fordham L. Rev.
969, 978 (2004)
Drew A. Swank, IN DEFENSE OF RULES AND ROLES: THE NEED TO CURB EXTREME FORMS
OF PROSE ASSISTANCE AND ACCOMMODATION IN LITIGATION, 54 Am. U.L. Rev. 1537
(August 2005) (“This article suggests that these proponents of greater pro se assistance and
accommodation are wrong. Just as with schools and drinking fountains,’separate but equal’ justice
systems will be neither equal nor just.)
Drew A. Swank, The Pro Se Phenomenon, 19 BYU J. Pub. L. 373 (2005).
ARTICLE: J UDICIAL ASSISTANCE TO SELF-REPRESENTED LITIGANTS: LESSONS FROM
THE CANADIAN EXPERIENCE, 17 Mich. St. J. Int’l L. 601 (2008-2009)
In America, the judiciary has increasingly had to grapple with the question of how far a judge can go
in guiding or assisting an SRL in such a way as to avoid the possibly harsh or unjust consequences
resulting from their lack of familiarity with the judicial process? Despite calls for clarification of the
judge’s role in these circumstances, the current reluctance of the U.S. judiciary to assist SRLs is
fostered by both the traditionally passive role of the adversarial trial judge, and by the general rule of
non-assistance in U.S. case law. Yet most U.S. trial judges have realized that they must assist SRLs
to some extent to avoid the harsh results that can occur when SRLs lacking sufficient legal
knowledge represent themselves in court.
Legal services Corporation, An Updated Report of the Legal Services Corporation, “Documenting
the Justice Gap In America The Current Unmet Civil Legal Needs of Low-Income Americans” (2009)
Gillian K. Hadfield, ”Higher Demand, Lower Supply? A Comparative Assessment of the Legal
Resource Landscape for Ordinary Americans”, 37 Fordham Urb. L.J. 129 (2009) Article can be
obtained from link.
Deborah L. Rhode, S
YMPOSIUM: WHATEVER HAPPENED TO ACCESS TO JUSTICE?, 42 Loy.
L.A. L. Rev. 869 (Summer 2009) (“‘Equal justice under law’ is a principle widely embraced and
routinely violated. Although the United States has the world’s highest concentration of lawyers, it
fails miserably at making their assistance accessible to those who need it most. Litigants who remain
unrepresented are less likely to obtain a fair outcome in court. The gap between our rhetorical
commitments and daily practices regarding access to justice is a function of inadequate funding,
restrictions on cases and activities by government-funded legal aid programs, insufficient concern by
courts, overbroad restrictions on nonlawyer services, and inadequate pro bono involvement by
lawyers and law students. Narrowing the justice gap will require a coordinated effort by all of the
stakeholders-the bench, bar, clients, nonprofits, and legal educators.”)
Michael Correll, F
INDING THE LIMITS OF EQUITABLE LIBERALITY: RECONSIDERING THE
LIBERAL CONSTRUCTION OF PRO SE APPELLATE BRIEFS, 35 Vt. L. Rev. 863 (2011)
Center for American Progress, “The Justice Gap: Civil Legal Assistance Today and Tomorrow”
(2011)
COLLOQUIUM: THE LEGAL PROFESSION’S MONOPOLY ON THE PRACTICE OF LAW:
OVERSTEPPING ETHICAL BOUNDARIES? ( 2014)
Jack P. Stahl, COLLOQUIUM: THE LEGAL PROFESSION’S MONOPOLY ON THE PRACTICE OF
LAW: CRACKS IN THE PROFESSION’S MONOPOLY ARMOR, 82 Fordham L. Rev. 2635 (2014)
Jessica Dixon Weaver, Overstepping Ethical Boundaries? Limitations on State Efforts To Provide
Access to Justice in Family Courts, 82 Fordham L. Rev. 2705 (2014).
Washington Supreme Court, W
ashington State 2015 Civil Legal Needs Study Update (2015)
ARTICLE: A
dversary Breakdown and Judicial Role Confusion in “Small Case” Civil Justice, 2016
B.Y.U.L. Rev. 899 (2016) This article can be downloaded from link.
(“This Article calls attention to the breakdown of adversary procedure in a largely unexplored area
of the civil justice system: the ordinary, two-party case. The twenty-first century judge confronts an
entirely new state of affairs in presiding over the average civil matter. In place of the adversarial
party contest, engineered and staged by attorneys, judges now face the rise of an unrepresented
majority unable to propel claims, facts, and evidence into the courtroom. The adversary ideal favors
a passive judge, but the unrealistic demands of such a paradigm in today’s “small case” civil justice
system have sparked role confusion among judges, who find it difficult to both maintain stony silence
and reach merits-based decisions in the twelve million cases involving unrepresented parties.”)
Lawyerist.com, “Measuring the Access-to-Justice Gap: Nearly 70% of All Civil Defendants Aren’t
Represented” (2016)
ABA Journal, “Can the access-to-justice gap be closed” (2016).
Deborah L. Rhode, W
HITE PAPER: WHAT WE KNOW AND NEED TO KNOW ABOUT THE
DELIVERY OF LEGAL SERVICES BY NONLAWYERS, 67 S.C. L. Rev. 429 (Winter 2016)
(It is a shameful irony that the nation with one of the world’s highest concentrations of lawyers does
so little to make legal services accessible. According to the World Justice Project, the United States
ranks 67th (tied with Uganda) of 97 countries in access to justice and affordability of legal
services.”Equal justice under law” is one of America’s most proudly proclaimed and routinely violated
legal principles. It embellishes courthouse doors, but in no way describes what goes on behind
them. Millions of Americans lack any access to justice let alone equal access. Over four-fifths of the
legal needs of the poor and a majority of the needs of middle-income Americans remain unmet.”)
ABA Commission on the Future of Legal Services.
The Commission presents this compendium of scholarly papers on the future of legal services. With
the generosity of the University of South Carolina Law Review and its faculty advisors and members,
the papers of leading academicians have been gathered.
Table of Contents
FORWARD – William C. Hubbard & Judy Perry Martinez
INTRODUCTION: WHAT WE KNOW AND NEED TO KNOW ABOUT THE STATE OF “ACCESS
TO JUSTICE” RESEARCH – Elizabeth Chambliss, Renee Newman Knake & Robert L. Nelson
WHAT WE KNOW AND NEED TO KNOW ABOUT DISRUPTIVE INNOVATION – Raymond H.
Brescia
WHAT WE KNOW AND NEED TO KNOW ABOUT CIVIL GIDEON – Tonya L. Brito, David J. Pate
Jr., Daanika Gordon, & Amanda Ward
WHAT WE KNOW AND NEED TO KNOW ABOUT COURT-ANNEXED DISPUTE RESOLUTION
–Deborah Thompson Eisenberg
WHAT WE KNOW AND NEED TO KNOW ABOUT PRO BONO SERVICE DELIVERY – April
Faith-Slaker
WHAT WE KNOW AND NEED TO KNOW ABOUT OUTREACH AND INTAKE BY LEGAL
SERVICES PROVIDERS – D. James Greiner
WHAT WE KNOW AND NEED TO KNOW ABOUT IMMIGRANT ACCESS TO JUSTICE – Elinor R.
Jordan
WHAT WE KNOW AND NEED TO KNOW ABOUT ONLINE DISPUTE RESOLUTION – Ethan
Katsh & Colin Rule
WHAT WE KNOW AND NEED TO KNOW ABOUT GAMIFICATION AND ONLINE ENGAGEMENT
– Stephanie Kimbro
WHAT WE KNOW AND NEED TO KNOW ABOUT MEDICAL-LEGAL PARTNERSHIP – Bharath
Krishnamurthy, Sharena Hagins, Ellen Lawton, & Megan Sandel
WHAT WE KNOW AND NEED TO KNOW ABOUT LEGAL STARTUPS – Daniel W. Linna Jr.
WHAT WE KNOW AND NEED TO KNOW ABOUT WATSON, ESQ. – Paul Lippe
WHAT WE KNOW AND NEED TO KNOW ABOUT THE DELIVERY OF LEGAL SERVICES BY
NONLAWYERS – Deborah L. Rhode
WHAT WE KNOW AND NEED TO KNOW ABOUT THE LEGAL NEEDS OF THE PUBLIC –
Rebecca L. Sandefur
WHAT WE KNOW AND NEED TO KNOW ABOUT GLOBAL LAWYER REGULATION – Carole
Silver
WHAT WE KNOW AND NEED TO KNOW ABOUT LEGAL PROCUREMENT – Silvia Hodges
Silverstein
WHAT WE KNOW AND NEED TO KNOW ABOUT LAW SCHOOL INCUBATORS – John Christian
Waites & Fred Rooney
Paul R Tremblay. “Surrogate Lawyering: Legal Guidance, sans Lawyers.” Georgetown Journal of
Legal Ethics, Forthcoming (2017).
ABA Law Journal, “86 percent of low-income Americans’ civil legal issues get inadequate or no
legal help, study says” (June 14, 2017)
Legal Services Corporation, T
he Justice Gap: measuring the Unmet Civil Legal Needs of
Low-income Americans (June 2017);
Scott E. Stafne, scottstafne.com “BETTER TO HAVE ADA ADVOCATE THAN LAWYER IN STATE
COURTS” (July 7, 2017)
V. HEALTH CONSEQUENCES OF FORECLOSURE AND HOMELESSNESS
CDC, Office for State, Tribal and Territorial Support, H
omelessness as a Public Health Law Issue:
Selected Resources(March 2, 2017)
Pam Miller, E
l Abandonado, Church of the Gardens Press (April 2017)
Boston Globe, A
n innovative, practical solution for preserving the health and well-being of the
homeless, March 9, 2017
The Guardian,”Mortality rate for homeless youth in San Francisco is 10 times higher than peers”
(April 14, 2016)
Policy Matters Ohio, Ohio foreclosures: Damage in the wake of housing crisis (November 4, 2016)
Scott Keyes, Surge In Homeless Deaths Expected Over Next Decade Unless We Act (January 21,
2014)
Kriston Capps, S
uicides Related to Foreclosure and Eviction Doubled During the Housing Crisis
(February 20, 2015)
Mariana Arcaya, M. Maria Glymour, Prabal Chakrabarti, Nicholas A. Christakis, Ichiro Kawachi, S.V.
Subramanian, Effects of Proximate Foreclosed Properties on Individuals’ Systolic Blood Pressure in
Massachusetts, 1987 to 2008(Originally published May 12, 2014)
Jason N. Houle PhD, and M
ichael T. Light PhD, T
he Home Foreclosure Crisis and Rising Suicide
Rates, 2005 to 2010(Published Online: May 13, 2014)
Katherine A. Fowler PhD, R. Matthew Gladden PhD, Kevin J. Vagi PhD, Jamar Barnes MPH, and
Leroy Frazier MSPH, I ncrease in Suicides Associated With Home Eviction and Foreclosure During
the US Housing Crisis: Findings From 16 National Violent Death Reporting System States,
2005–2010 (Published Online: July 17, 2014)
Kathleen Ziol-Guest and Ariel Kalil, Frequent Moves in Childhood Can Affect Later Earnings, Work,
and Education The impact of childhood moves between ages 6 and 10 reverberates long into
adulthood (March 2014)
Julia B. Isacs, The Ongoing Impact of Foreclosures on Children (April 8, 2012)
Kathryn L.S. Pettit and Jennifer Comey, The Foreclosure Crisis and Children: A Three-City Study
(March 1, 2012)
Janet Currie Princeton University and NBER Department of Economics and Erdal Tekin Georgia
State University and NBER Department of Economics, Is the Foreclosure Crisis Making Us Sick?
(December 2011)
NHS choices; your health, your choices “Homeless die 30 years younger than average (December
11, 2011)
Thomas Kingsley, Robin Smith, and David Price The Urban Institute, The Impacts of Foreclosures
on Families and Communities (May 2009)
National Coalition for the Homeless Health Care and Homelessness, “Health Care and the
Homeless” (July, 2009)
(“As a result of these factors, homeless people are three to four times more likely to die than the
general population (O’Connell, 2005). This increased risk is especially significant in people between
the ages of 18 and 54. Although women normally have higher life expectancies than men, even in
impoverished areas, homeless men and women have similar risks of premature mortality. In fact,
young homeless women are four to 31 times as likely to die early as housed young women
(O’Connell, 2005). The average life expectancy in the homeless population is estimated
between 42 and 52 years, compared to 78 years in the general population.”)
Jennifer Comey and Michel Grosz, W
here Kids Go: The Foreclosure Crisis and Mobility
In Washington, D.C. (no date provided)
VI. DATA REGARDING NUMBER OF FORECLOSURES IN U.S.
CBS News, A
merica’s foreclosure crisis isn’t over (January 26, 2016)
FDIC, NeighborWorks America, Foreclosure Statistics
Wall Street Journal, Many Who Lost Homes to Foreclosure in Last Decade Won’t Return — NAR
(April 5, 2015)
PBS Newshour, G
et ready for another round of the foreclosure crisis (March 5, 2015)
HuffPost, Foreclosed ‘Zombie’ Homes Exceed 300,000 Properties: Study ( May 30, 2013)
CNN Money, Million-dollar foreclosures rise as rich walk away (February 23, 2012)
ProPublica, Despite Warnings From States, Federal Regulators Failed to Act on Foreclosure
Problems (Nov. 8, 2010)
NBC News, Study: 1
.2 Million Households Lost to the Recession (April 8, 2010)
VII.THE BASIS FOR CREATING A PRIVATE JUSTICE SYSTEM IN LIEU OF ARTICLE III
COURTS.
Andrew D. Bradt “A RADICAL PROPOSAL”: THE MULTIDISTRICT LITIGATION ACT OF 1968,”
165 U.Pa. Rev. 831 (March 2917)(hypothesizing that federal judges knew there was about to be a
mass tort explosion and accordingly developed and lobbied for the passage of of a statute to
concentrate power in the hands of the federal judiciary. This much like the th conduct I hypothesize
occurred when the Supreme Court changed the Federal Rules by abrogating the seminal case of
Conley v Gibson.
Richard d. Freer, EXODUS FROM AND TRANSFORMATION OF AMERICAN CIVIL LITIGATION,
65 Emory L.J. 1491 (2016)
The story of American federal civil litigation over the past half century is one of exodus and of
transformation – exodus from and transformation of the traditional model of “court litigation.” The
exodus has taken various paths, especially contractual arbitration. The Supreme Court has extended
the Federal Arbitration Act to contracts of adhesion and to the adjudication of federal statutory rights.
Thus arbitration has become mandatory for claims by consumers and employees. In approving this
expansion, the Court increasingly makes clear that it sees nothing special about court litigation – that
it and arbitration are mechanisms of equal dignity
Judith Resnik, Diffusing Disputes: The Public in the Private of Arbitration, the Private in Courts, and
the Erasure of Rights, 1
24 Yale L.J. 2804 (2015).
CRISIS in U.S. – Lack of Justice for 99%
I.
The only way slavery and genocide can exist openly in a society is with the participation of the
government – and indirectly the people. In the United States the final check on tyranny was
supposed to be the judicial department, composed of courts governed by judges whose judicial
power was intended to be checked by juries of citizens.
But a predictable thing occurred when the judges nixed juries (by employing procedural
technicalities to get around their constitutional authority) and mixed with the rich and powerful… The
judges took sides; the wrong side — the side of the rich of powerful against providing justice for the
people. See e.g. Dahlia Lathwick, “This Court Erred: The Supreme Court has almost always sided
with the wealthy, the privileged, and the powerful, a new book argues” Slate (September 30, 2014)
reviewing 2014 book by Constitutional Law Professor Erwin Chemerinsky, The Case Against the
Supreme Court. See also “Do the “Haves” Come Out Ahead over Time? Applying Galanter’s
Framework to Decisions of the U.S. Courts of Appeals, 1925-1988”, 33 Law & Soc’y Rev. 811
(1999); Galanter, Mark, “Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal
Change” (1994).
As my two previous articles on “the evolution of debt slavery in modern times” assert, american
courts have consistently used their Article III judicial power to benefit the rich and powerful at the
cost of providing justice for the people. In the D
red Scott v Sanford ruling the Supreme Court
concluded the entire race of black people was not entitled to seek justice in american courts
because they were merely property which was meant to be bought and sold by wealthy white
americans.
This travesty of judicial review (criticized by President Abraham Lincoln both in the context of
constitutional doctrine and with regard to the Dred Scott case specifically) spawned the great Civil
War which the people had to fight to undo the injustice of the judicial branch. The War cost this
nation the lives of 620,000 people simply because a calloused judicial branch turned its back on that
basic truth that government’s overriding purpose is to achieve justice by protecting the inalienable
rights of all people…
And unfortunately american judges have typically had no clue about the difference between good
and evil or right and wrong or justice and injustice because of their longstanding and unflinching
loyalty to the rich and powerful.
Regrettably… this hasn’t changed.
One of the Supreme Court’s most recent cases perpetuating modern day debt slavery is its
unanimous opinion in Henson v Santander Consumer USA Inc. In that case the Court held the Fair
Debt Collection Practices Act, which was enacted by Congress to prevent “debt collectors” from
using unfair and unconscionable debt collection practices against the consumers, including
homeowners, does not apply to debt buyers. Translation: Debt Buyers can use unfair and
unconscionable practices to collect debts they have purchased for pennies on the dollar and cannot
be held liable for those injuries such practices cause to the lives, liberties, property, and happiness
of the people.
Santander is the modern day moral equivalent of Dred Scott in that it treats debtors as property the
wealthy can abuse. Santander eschews any notions of justice or equity in order to motivate the sale
of bad debt to unethical hedge funds who use every unconscionable trick in the book to attack and
hurt american consumers to collect bad debt.
Congress’ goal in enacting the Fair Debt Collection Act was to prevent unscrupulous downstream
debt buyers from bombarding Americans with bad faith debt collection practices and then the
Supreme Court comes along and tells these creep companies and their soulless lawyers that they
can mistreat the people in order to collect purported debts, which often are not owed.
How does Santander reflect justice or even good public policy?
The obvious answer is it does not. Santander, just like the Dred Scott case, starts from the dubious
proposition that: “[i]t is not the province of the court to decide upon the justice or injustice…” and
then misinterprets legislation to insure the continued redistribution of wealth to the 1%, which has
always been its practice except for a brief period of time when FDR threatened to pack the Supreme
Court in order to squelch this habit.
If it is true (and I think it is) that American courts are not about justice, then we as a people must ask
do we need (or want) Article III courts at all? For as James Madison so famously wrote in Federalist
Paper No. 51:
… Justice is the end of government. It is the end of civil society. It ever has been and ever will be
pursued until it be obtained, or until liberty be lost in the pursuit. …
II.
There is circumstantial evidence the Supreme Court sought to facilitate the impact the 2008
financial collapse. This collapse was utilized to transfer middle class wealth from this Nation’s people
to its Wall Street sociopaths; a plan which the facts suggest has resulted in one of the one of the
most massive genocides ever known. Cf. Miller, Pam, Church of the Gardens Press, El
Abandonado, (2017); The Guardian,”Mortality rate for homeless youth in San Francisco is 10 times
higher than peers” (April 14, 2016); “Homeless die 30 years younger than average (December 11,
2011). See also infra and bibliography, part IV.
The circumstantial evidence against the Supreme Court includes, among other things, an unusual
(perhaps unlawful) change in the Federal Rules of Civil Procedure which occurred in 2007.
28 USC §2072(a) provides the Supreme Court shall have the power to promulgate general rules of
practice and procedure of the United States District Courts. But going through the judicial
rule-making process would have taken more time than was needed to help the bankers.
So in 2007 (just before the 2008 financial collapse) the Supreme Court judicially interpreted
Federal Rules of Civil Procedure 8 and 12(b) in such a way as to give judges almost absolute power
to prevent homeowners’ cases from being decided pursuant to a trial by jury. See Bell Atlantic Corp.
v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S.554 (2009).
The Supreme Court determined in Iqbal and Twombly that to obtain a trial, including a trial by jury, a
party must prepare a complaint which would be plausible to a federal judge. Prior to this time it was
only necessary to establish a possible claim, not one a federal judge found plausible.
The concern over the Supreme Courts unusual change in the rules was palpable. Indeed, it was
immediately criticized by many of this nations most well known and respected legal scholars. See
Arthur R. Miller, F
rom Conley to Twombly to Iqbal: A Double Play on the Federal Rules of Civil
Procedure, 60 Duke L.J. 1 (October 2010); Stephen N. Subrin, Thoma O. Main, T
HE FOURTH ERA
OF AMERICAN CIVIL PROCEDURE, 162 U. Pa. L. Rev. 1839 (June 2014) See also Bibliography
below, section I. And many state court’s refused to fall in line because of the Supreme Court’s
underhanded use of judicial decision making as a basis for changing the rules of procedure for
district courts. See Hawkeye Foodservice Distrib. v. Iowa Educators Corp., 812 N.W.2d 600,
607-608 (2012). See also Bibliography below, section I.
The 2007 rule change had an extremely negative impact on the American people who owed debt,
homeowners particularly.
Many of us believe the new rule was perpetrated by those who knew the result would likely be the
genocide which is still ongoing today.
By 2011 criticism of the Supreme Court’s usurpation of power reinterpreting Rules 8 and 12 had
grown to the point where the Federal Advisory Committee on the Rules apparently felt it was
necessary to ask the Federal Judicial Conference to provide “cover” for the Supreme Court’s
unilateral change in the Federal Rules. The Federal Judicial Center attempted to do so by
suggesting that the rule change had not made much of a difference in having cases dismissed,
except in the area of financial instruments (cases involving American homeowners). See e.g. Joe S.
Cecil, Et. Al., Fed. Judicial Ctr., Motion To Dismiss For Failure To State A Claim After IQBAL:
Report To The Judicial Conference Advisory Committee On Civil Rules (2011)
This is significant because even the Federal Judicial Center had to admit the effect of the
instantaneous rule change on homeowners and others litigating financial instruments was
devastating. See Id., page 14, Table 4 which substantiates that over 91% of claims filed by lawyers
in these type of cases got dismissed under Iqbal/Twombly’s judge-centric plausibility standards.
III.
America’s 21st century court system doesn’t even resemble the judicial department which our
forefathers intended we should have.
The Constitution clearly intended the people would be entitled to trials by jury pursuant to a
traditional common law adversarial judicial system. See e.g. Todd Peterson: R
estoring Structural
Checks on Judicial Power in the Era of Managerial Judging, 29 U.C. Davis L. Rev. 41 (Fall, 1995)((
“[Judges] are limited by prior case law and by congressional statutes. In defending the independent
judiciary, Hamilton expressly relied on the power of precedent as a check on judicial power: ‘To
avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by
strict rules and precedents which serve to define and point out their duty in every particular case that
comes before them . . . .’ The framers did not grant judges the right to exercise their own unlimited
discretion or will instead of judgment.”)
But we certainly don’t have these rights any longer thanks to the Supreme Court, which has
systematically usurped these rights to benefit the rich at the expense of the people.
The government has intentionally transformed the american adjudication process into a system of
judicial tyranny reminiscent of the inquisition, especially for the poor. See Criminalization Justice
Policy Program, Harvard Law School, Criminalization of Poverty (last accessed on October 12,
2017); Rogayah Chamseddine, SPIN, “The Criminalization of Poverty,” (February 6, 2017; Cf.
Stannard, Matt, Occupy.com, “Part I: 34 Ways America’s Legal System Hurts the Poor” (April 22,
2017); P
art II (April 30, 2017)
Indeed, most people get so bludgeoned via abusive federal judicial processes that few can last long
enough to ever obtain a trial. See Scott E. Stafne, scottstafne.com, Scorched Earth Litigation Model,
September 15, 2015. It is no understatement to suggest america’s judicial system kills and/or injures
those who are forced to encounter its abuse. See e.g., C
aught.net & the Pro Se Way (last accessed
October 10, 2017); Huffer, Karin,Legal Abuse Syndrome: 8 Steps for Avoiding the traumatic Stress
Caused by the Justice System (2013).
And I am not the only one who has noticed this nation’s systematic abuse of america’s middle class
by the federal and state judicial branches of government has negated those protections our founders
intended we have against judicial tyranny. See e.g. Jessica K. Steinberg, “Adversary Breakdown
and Judicial Role Confusion in ‘Small Case’ Civil Justice“, 2016 B.Y.U.L. Rev. 899 (2016). (“The
adversary ideal favors a passive judge, but the unrealistic demands of such a paradigm in today’s
“small case” civil justice system have sparked role confusion among judges, who find it difficult to
both maintain stony silence and reach merits-based decisions in the twelve million cases involving
unrepresented parties. This Article contends that the adversary ideal is untenable in the lower civil
courts. Appellate courts and ethics bodies have virtually ignored this problem, with the result that
judges are left to improvise a solution.”
In September of this year well respected Seventh Circuit Court of Appeals Judge Richard Posner,
actually retired because of the unfair treatment other federal judges gave pro se litigants.
Pro se litigants include those people who can’t afford a lawyer to represent them and must
therefore negotiate the byzantine, bizarre, and corrupt federal judicial gauntlet by themselves before
staff attorneys and federal judges who do not like them very well.
According to Posner (and consistent with my observations over the last decade) “most judges
regard [pro se litigants who can’t afford lawyers] as kind of trash not worth the time of a federal
judge.” Because these arrogant judges believe pro se arguments are worthless their appeals are
not decided by federal judges or law clerks, but staff attorneys. Posner reports the judges of the 7th
Circuit simply rubber stamp the decisions of these “staff lawyers” who decide the pro se appeals.
Here is a copy of an interview with Judge Posner which describes his observations in his own
words.
DL: As you’ve explained in several interviews — with the Chicago Daily Law Bulletin, with me f or
these pages, and with Adam Liptak of the New York Times — you resigned in part because of your
disagreements with colleagues about the Seventh Circuit’s treatment of pro se litigants. I know you
discuss this in detail in your new book (affiliate link) — can you offer us a little preview?
RAP [Richard A. Posner]: Pro se litigants, by definition, don’t have a lawyer. This generally means
they don’t have money to hire a lawyer. So they have to litigate for themselves. They’re handicapped
by not having money and not having a lawyer, and they also tend to have limited education. About
half of our appeals are by pro se’s, and about half of those are prison inmates.
When pro se litigants appeal, their appeal papers are given to a staff attorney. We have about 20
staff attorneys who are appointed for two years, and a few supervisors. The staff attorneys tend to
be good students from good schools, hired right after they graduate. Despite their good
credentials, they tend to be hostile to the pro se’s. It’s not their own feelings; it’s that they
sense — correctly — that the judges don’t really care much about the pro se’s, find them
nuisances, and are not interested in them. So that percolates down to the staff attorneys, and
they have a tendency to go against the pro se appeals even when they have apparent merit.
So very often, a staff attorney memo recommending dismissal of the appeal gives rise to a very
short, very rapidly issued order by a judicial panel, not published in the Federal Reporter, that tends
to be perfunctory. One of my former colleagues thinks that two words are enough for an order
dismissing a pro se appeal: “Appeal dismissed.”
I didn’t think the pro se litigants were getting a fair break. I made various s uggestions, all of which
were rejected. I wasn’t making progress in helping the pro se’s. And I didn’t have good relations
anymore with the other judges — not really on a personal level, but we just didn’t see eye to eye on
the pro ses.
So I stepped down from the bench and published my newest book, which is now out: Reforming the
Federal Judiciary: My Former Court Needs to Overhaul Its Staff Attorney Program and Begin
Televising Its Oral Arguments (affiliate link).
(Emphasis Supplied)
Judge Posner, who took the time to review some of these staff attorney’s decisions, correctly
discerned that delegating judicial power to “baby lawyers”, without any meaningful supervision by
active Article III judges, was improper. To me, this is rather obvious!!!
It is important to understand Judge Posner did not resign until after all the other judges on the
Seventh Circuit refused to require (or even allow) these baby “staff lawyers” decisions regarding pro
se appeals to be meaningfully reviewed by active Article III judges, as I believe is required by the
Constitution.
The American Bar Association Journal asked the Seventh Circuit for a comment on Judge Posner’s
accusations. In response Dianne Wood, the Chief Judge of the Seventh Circuit (a liberal appointed
by Bill Clinton) responded:
“First, while [Judge Posner] is certainly entitled to his own views about such matters as our Staff
Attorney’s Office and the accommodations we make for pro se litigants, it is worth noting that his
views about that office are not shared by the other judges on the court, and his assumptions about
the attitudes of the other judges toward pro selitigants are nothing more than that—assumptions.
In fact, the judges and our staff attorneys take great care with pro se filings, and the unanimous
view of the eleven judges on the 7th Circuit (including actives and seniors) is that our staff
attorneys do excellent work, comparable to the work done by our chambers law clerks. We
are lucky to attract people of such high caliber for these two-year positions.”
(Emphasis Supplied)
Significantly, the Seventh Circuit’s response concedes Judge Posner’s point and establishes the
corruption of 21st century american courts. See Brian Vukadinovich, American Thinker”Reforming
the 7th Circuit” (October 19, 2017) Wood admits on behalf of the Seventh Circuit that staff attorneys
are performing the functions of Article III judges in pro se appeals without the same type of oversight
as is provided a judicial clerk wrestling with an appeal where both sides are represented by an
attorney. As Vukadinovich such conduct by the 7th Circuit is just plain wrong and likely
unconstitutional:
Merely saying that the judges who are the subject of Posner’s allegations “don’t share Posner’s
views” about their alleged wrongdoing does nothing to reassure the public that the 7th Circuit’s
attitude toward pro se litigants is as frivolous as Posner has alleged.
Since the issues involve a high matter of public importance, there should be a very thorough
investigation of the 7th Circuit. Federal Rule of Appellate Procedure 4 explicitly states that an
appeal is a matter of a “right.” The rule doesn’t give the judges of the 7th Circuit, or any circuit for
that matter, any discretion in diminishing that right when it comes to a pro se appeal. Furthermore,
the “Standards for Professional Conduct Within the Seventh Federal Judicial Circuit”, item 6,
explicitly states “We will give the issues in controversy deliberate, impartial, and studied analysis and
consideration.” Item 8 states “…that a litigant has a right to a fair and impartial hearing…” A custom
of systematically dismissing pro se appeals hardly meets the threshold standard of “…a right to a fair
and impartial hearing…”
It is a major red flag when judges aren’t even willing to follow the rules of their own court,
and that certainly does appear to be the case with the judges in the 7th Circuit. Systematic
discrimination by judges against a class of people, pro se litigants in this case, is wrong and
against the law. Wood’s public response is not good enough. A grand jury should be
empanelled and the judges and staff attorneys and law clerks should be required to testify
under oath so that a factual determination may be made as to whether or not the judges on
the 7th Circuit are systematically discriminating against the pro se litigants.
Id. (emphasis added)
This admission has staggering repercussions when one realizes most court cases today involve pro
se litigants. See e.g. ABA Law Journal, “86 percent of low-income Americans’ civil legal issues get
inadequate or no legal help, study says” (June 14, 2017); Legal Services Corporation, The Justice
Gap: measuring the Unmet Civil Legal Needs of Low-income Americans (June 2017);
Lawyerist.com, “Measuring the Access-to-Justice Gap: Nearly 70% of All Civil Defendants Aren’t
Represented” (2016) ; ABA Journal, “Can the access-to-justice gap be closed” (2016).
The reality that our courts more often than not decide cases where only one side is able to
effectively present their side to a judge or jury is at odds with those basic tenets of justice the
Revolutionary war was fought to achieve. Clearly, constitutional history establishes that the people
who ratified the Constitution were led to believe the Constitution was designed so judges would not
become judicial tyrants, unchecked by juries and the Congress. See Federalist Paper No. 78.
Yet, that is exactly what has happened.
And scholars the world over who observe the American judicial system quickly appreciate america’s
courts and judges have little, if anything, to do with justice or fairness.
IV.
The “honest to God” truth is America’s Article III judicial department has dismantled those basic
constitutional checks on its power which were established to prevent it from devolving into the
tyrannical judocracy it has become. Looks at the facts. The facts dispute virtually all the myths our
courts perpetuate to make us believe our judicial branch performs its constitutional duties.
●
MYTH: “Only the United States makes routine use of jury trials in a wide variety of
non-criminal cases.” SeeWikipedia.
TRUTH: Less than 5% of cases filed ever get to trial let alone a trial by jury.
●
MYTH: America has an adversarial system of justice where both sides are competently
represented before a neutral judge and jury.
TRUTH: Over half the cases presented to these supposedly neutral judges (who apparently don’t
like or respect 99% of us) are handled by non-lawyers who have no experience with the mostly
counter intuitive archaic rules of procedure and evidence which make litigation more a game than a
search for truth. See Bibliography, Past IV.
●
MYTH: the United States judicial system is based on the common law.
TRUTH : The common law system of precedent has not existed in America for sometime. Compare
e.g. Anastasof v. United States, 223 F.3d 898 (8th Cir. 2000) (Courts are required to make and
follow precedent) with H
art v. Massanari, 266 F.3d 1155 (9th Cir. 2001)(Judges can decide when
they want and if they want to create precedent) with Judge Posner’s observations that today courts
need not even explain their reasons for their decisions by simply stating “Appeal Dismissed”. See
supra.
A recent law review, Unpublished Decisions and Precedent Shaping: a Case Study of Asylum
Claims, 31 Geo. Immigr. L.J. (Fall 2017) considered a decades worth of data following the Supreme
Court absolving federal courts of appeal of the responsibility for creating (and apparently following)
precedent. According to Professor Scott Rempell, the author of the study:
The federal courts of appeal now publish fewer than twenty percent of their decisions. The effects of
depriving so many decisions of precedential value are disputed. Critics believe selective publication
harms law development and distorts legal doctrine, while selective publication’s defenders are
unconvinced that the available evidence demonstrates pervasive problems in need of reform.
Accounting for the flaws and limitations of past empirical assessments, this article provides the
results of a study that was designed to establish a more concrete understanding of how selective
publication impacts development of the body of law. The study draws on a comprehensive
dataset of all asylum cases in the Ninth Circuit that addressed the issue of persecution over a
six-year period. The results show that the court incorrectly perceived how often it reached
certain outcomes in past decisions, because many of the outcomes were buried in
unpublished dispositions. Additionally, many of the rule statements the court applied in
unpublished decisions contradicted rules it promulgated in its public decisions, which
indicates the “book law” is not completely settled. The court also reached inconsistent
outcomes regarding a significant percentage of its unpublished cases. Finally, panels failed
to address highly germane precedents that losing parties raised in their briefs.…
(Emphasis Supplied)
V.
In case No. 3 of the Nuremberg Trials 16 defendants who were former German judges, prosecutors
or officials in the Reich Ministry of Justice, were found guilty of committing war crimes and crimes
against humanity. The tribunal found, in effect, that while on paper the rights established by the
Weimar Constitution were retained by the Nazis, there was a progressive degeneration of the judicial
system under Nazi rule and that substantially every principle of justice enumerated by prior German
law was violated by the Hitler regime.
The same can be said about about the United States judicial system. Our courts have attacked our
constitutionally protected jury system to the point where it is for all practical purposes now extinct.
The common law is no longer predictable because judges no longer believe their rulings must be
anchored to precedent. Far too many judges act as despots who can berate, belittle, and harm those
who appear in their ostentatious court rooms.
Obviously, if as James Madison postulated justice is the goal of government, our courts and the
other two branches of our government have failed us. We need good competent judges who are
paid to ferret out the truth in a pragmatic way; not baby or senile lawyers awed by their power and
the courtesan legal cabals which seek their favor. If our constitutional system is now dead let’s move
on to one that actually attempts to provide justice for a free people.
Ever wonder how many millions of people the american courts have caused to be evicted since the
Supreme Court made it so easy for them to do so in 2007? Me too.
Unfortunately, looks like the government doesn’t keep very good track of this. See Bibliography,
Parts V & VI. The last estimate I recall reading in a non-government article was that as of 2013 over
30,000,000 people had been forced from their homes. Unfortunately, that article appears to have
been scrubbed from the internet. But such numbers are consistent with a May 2015 article in the
Washington Post, which states:
The scale of this entire foreclosure migration is deceptively large. The 10 million households that
lost their homes dwarf the number that left the Great Plains during the Dust Bowl (that was about 2.5
million people). In fact, it is larger than the 6 million blacks who moved north during the Great
Migration — a movement that spanned decades.
Emily Badger, “How the Housing Crisis Left Us More Racially Segregated,” Washington Post,
May 8, 2015.
Next question. What happens to the people our courts force onto the streets? Just as you would
expect, there are very few recent studies on this as well.
However, way back in 2011 when courts were accelerating foreclosures and homelessness,
virtually everyone knew the banks had rigged the system and were blatantly using forged documents
to take people’s homes. (see e.g. 2011 6
0 Minutes programs and C
ongressional Hearings). Turns
out the courts didn’t care about either the forgeries or the health crises, including deaths, such
injustice was causing the people. See Bibliography, Part V.
The new research found that the average homeless person has a life expectancy of 47, compared
to 77 for the rest of the population: a startling difference of 30 years…
NHS choices; your health, your choices “Homeless die 30 years younger than average (December
11, 2011).
So let’s assume based on the data (and lack of data) set forth in Part V of the bibliography that at
least 30,000,000 people have been evicted by the federal and state governments from their homes.
Of that number only a third of these people are able to escape homelessness. Cf. Wall Street
Journal, M
any Who Lost Homes to Foreclosure in Last Decade Won’t Return — NAR (April 5, 2015)
This means our courts and governments have robbed these people collectively of 60,000,000 million
years of life. This wouldn’t happen in a just society of free people where the banks had already been
bailed out of these losses which were a result of their own criminal behavior. Mark Collins, Forbes,
“The Big Bank Bailout” (July 14, 2015)
I have written about american judges crimes against humanity. See e.g. Stafne, Scott, “Free
House or Death Sentence?”, scottstafne.com (April 27, 2017) , See also Stafne, Scott, “Happy
Thanksgiving – 2016” scottstafne.com (November 23, 2016) . Cf. Stafne, Scott, “Judicial Review – A
Slippery Slope”, scottstafne.com (August 21, 2014). Others have also explained that the reasons
American law is so similar to that created by the Nazi’s is because Germany’s judges and lawyers
used American law as their example. Bill Moyers interview with James Whitman is a good example.
See, For the Record,“Hitler’s American Model: The United States and the Making of Nazi Race Law”
(October 13, 2017). The interview discusses Whitman’s new book Hitler’s American Model: The
United States and the Making of Nazi Race Law, Princeton University Press (2017)
But no one wants to have to care about their lost neighbors because then we all become complicit
in these crimes by the united states against this nation’s own people.
In United States of America v. Alstötter, et al. (“The Jurists’ Trial”), 3 T.W.C. 1 (1948), 6 L.R.T.W.C.
1 (1948), 14 Ann. Dig. 278 (1948) the Court well stated the gravity of judges relying on false
evidence when imposing death and/or severe sentences on citizens, who have been robbed of their
freedom.
He [the judge defendant] formed his opinions from dubious records submitted to him before
trial. By his manner and methods he made his court an instrumentality of terror and won the
fear and hatred of the population. From the evidence of his closest associates as well as his
victims, we find that Oswald Rothaug represented in Germany the personification of the secret Nazi
intrigue and cruelty. He was and is a sadistic and evil man. Under any civilized judicial system he
could have been impeached and removed from office or convicted of malfeasance in office
on account of the scheming malevolence with which he administered injustice.
Conclusion.
“In a well-functioning judicial system, negotiated resolutions of litigated disputes should reflect not
only the interests of the disputants but also a reasonable approximation of the factual and legal
merits of claims.” Brooke D. Coleman, “THE EFFICIENCY NORM” 56 B.C. L. Rev 1777 (2015) Just
as this observation did not apply in the Dred Scott case it does not apply to the vast majority of those
of us who find ourselves trapped in court proceedings today. This is because our government views
those of us who cannot shell out cash for a court’s favorable ruling as something less than the free
people our Constitution intended would be entitled to justice.
BIBLIOGRAPHY
I. WAS IQBAL PLANNED BY THE COURTS TO FACILITATE FORECLOSURES?
Suja A. Thomas, Why the Motion to Dismiss Is Now Unconstitutional, 92 Minn. L. Rev. 1851 (2008)
Artilce can be downloaded from Link
Jeffery Rosen, The New York Times Magazine, “Supreme Court, Inc.” (March 16, 2008)
Arthur R. Miller, F
ROM CONLEY TO TWOMBLY TO IQBAL: A DOUBLE PLAY ON THE FEDERAL
RULES OF CIVIL PROCEDURE, 60 Duke L.J. 1 (October 2010)
Clermont, Kevin M. and Yeazell, Stephen C., “Inventing Tests, Destabilizing Systems” (2010).
Cornell Law Faculty Publications. Paper 201.
Lisa Eichhorn, A Sense of Disentitlement: Frame-Shifting and Metaphor in Ashcroft v. Iqbal, 62 Fla.
L. Rev. 951 (2010).
Robert G. Bone, Plausibility Pleading Revisited and Revised: A Comment on Ashcroft v. Iqbal, 85
Notre Dame L. Rev. 849, 849 (2010) This article can be downloaded from link.
McCurry v. Chevy Chase Bank, FSB, 169 Wn.2d 96, 103 (2010) “[T]his court [Washington Supreme
Court] would be hesitant to effectively rewrite CR 12(b)(6) based on policy considerations. The
appropriate forum for revising the Washington rules is the rule-making process. See Twombly, 550
U.S. at 579, 595 (Stevens, J., dissenting). This process permits policy considerations to be raised,
studied, and argued in the legal community and the community at large.”
Hawkeye Foodservice Distrib. v. Iowa Educators Corp., 812 N.W.2d 600, 607-608 (2012).
“For the most part, state high courts have declined to adopt the new standard announced in
Twombly and Iqbal. See Cent.Mortg. Co. v. Morgan Stanley Mortg. Capital Holdings LLC, 27 A.3d
531, 537 (Del. 2011); Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 424
(Tenn. 2011); McCurry v. Chevy Chase Bank, FSB, 169 Wn.2d 96, 233 P.3d 861, 863-64 (Wash.
2010); Roth v. DeFeliceCare, Inc., 226 W. Va. 214, 700 S.E.2d 183, 189 n.4 (W. Va. 2010). But see
Doe v. Bd. of Regents, 280 Neb. 492, 788 N.W.2d 264, 278 (Neb. 2010). These courts have given a
variety of reasons for refusing to incorporate the new federal standard in their state rules. For
example, the Washington court concluded that the plausibility factor adds a determination of the
likelihood of success on the merits, so that a trial judge can dismiss a claim, even where the law
does provide a remedy . . ., if that judge does not believe it is plausible the claim will ultimately
succeed.
Helen Hershkoff & Arthur R. Miller, Celebrating Jack H. Friedenthal: The Views of Two Coauthors,
78 Geo. Wash. L. Rev. 9, 28–29 (2009);
Kenneth S. Klein, A
shcroft v. Iqbal Crashes Rule 8 Pleading Standards onto Unconstitutional
Shores, 88 NEB. L. REV. 261 (2009).
Stephen B. Burbank, Summary Judgment,Pleading, and the Future of Transsubstantive Procedure,
43 Akron L. Rev. 1189, 1190 (2010);
Kenneth Klein, I s Ashcroft v. Iqbal the Death (Finally) of the “Historical Test” for Interpreting the
Seventh Amendment?, 88 Neb. L. Rev. 467, 471–72 (2010).
“Conclusory” Is Still Quite Elusive: The Story of a Word, Iqbal, and a Perplexing Lexical Inquiry of
Supreme Importance, 73 U. Pitt. L. Rev. 215 (2011) This article can be downloaded from the link.
(“There is a sense in Iqbal that conclusory statements are like procedural pornography so profane
and lacking in quality that they are not entitled to protection of otherwise liberal pleading standards.”
Alexander A. Reinert, Pleading as Information-Forcing, 75 L. & Contemp. Probs. 1, 22–28 (2012);
Hawkeye Foodservice Distrib. v. Iowa Educators Corp., 812 N.W.2d 600, 607-608 (2012).
“For the most part, state high courts have declined to adopt the new standard announced in
Twombly and Iqbal. See Cent.Mortg. Co. v. Morgan Stanley Mortg. Capital Holdings LLC, 27 A.3d
531, 537 (Del. 2011); Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 424
(Tenn. 2011); McCurry v. Chevy Chase Bank, FSB, 169 Wn.2d 96, 233 P.3d 861, 863-64 (Wash.
2010); R
oth v. DeFeliceCare, Inc., 226 W. Va. 214, 700 S.E.2d 183, 189 n.4 (W. Va. 2010). But see
Doe v. Bd. of Regents, 280 Neb. 492, 788 N.W.2d 264, 278 (Neb. 2010). These courts have given a
variety of reasons for refusing to incorporate the new federal standard in their state rules. For
example, the Washington court concluded that the plausibility factor adds a determination of the
likelihood of success on the merits, so that a trial judge can dismiss a claim, even where the law
does provide a remedy . . ., if that judge does not believe it is plausible the claim will ultimately
succeed.
Joe. S. Cecil, Federal Judicial Center, “Of Waves and Water: A Response to Comments on FJC
Study Motions to Dismiss for Failure to State a Claim after Iqbal,” Draft Posted March 19, 2012.
Paper can be downloaded from link.
Howard M. Wasserman, T
he Roberts Court and the Civil Procedure Revival, 31 Rev. Lit. 313, 334
(2012) Article can be downloaded at from link. (noting that Twombly “short circuited a preliminary
discussion of notice pleading by the Advisory Committee”);
Alexander A. Reinart, ABA Human Rights Magazine, “Lurking in the Shadows: The Supreme
Court’s Quiet Attack on Civil Rights: The Supreme Court’s Civil Assault on Civil Procedure, Vol 1,
No. (2015);
Amicus Brief on behalf of Public Justice PC filed with Supreme Court on October 24, 2016 in
support of Respondents in VISA, Inc. v Sam Osborn, which petition was dismissed as improvidently
granted argue Supreme Court has no authority to amend rule of civil procedure without going
through rule-making procedure or alternatively interpreting such rules away. 27-29
II. IQBAL/TWOMBLY BENEFITS CORPORATIONS AND THE WEALTHY AT THE EXPENSE OF
THE PEOPLE.
Stein, Alex and Parchomovsky, Gideon, “Empowering Individual Plaintiffs” (2017).
(“[A]s we show in this Essay, in many key sectors of our economy, suits by individual plaintiffs have
become a rare phenomenon, if not a virtual impossibility. The architecture of liability, by making
causes of action more complex and difficult to prove, while equipping defendants with multiple
defenses, coupled with the fact that large corporate defendants enjoy a vast cost advantage over
individual plaintiffs on account of superior legal expertise and economies of scale and scope, make it
nearly impossible for individual plaintiffs to prevail in court, or even get there. This problem pervades
many industries, but, for the reasons we detail, it is particularly acute in the insurance, healthcare,
medical, and consumer finance sectors.)
Luke K. Norris, “LABOR AND THE ORIGINS OF CIVIL PROCEDURE”, 92 N.Y.U.L. Rev. 462
(2017) Article can be downloaded from link
(“T]his Article argues that the recent transformations in civil procedure both undermine the
economic purposes that were central to the regime’s rise and diminish the ability of diffuse economic
actors to exercise countervailing power – threatening once-enduring procedural commitments.)
Alexandra D. Lahav, A
RTICLE & ESSAY: THE ROLES OF LITIGATION IN AMERICAN
DEMOCRACY, 65 Emory L.J. 1657(2016) paper can be downloaded from link.
(“As in politics and economics, a system that gives too much control to the one percent risks
undervaluing and under-serving the remaining ninety-nine. Using social and political science, the
Article argues that the homogenous policy making of one percent procedure creates sub optimal
results. The Article concludes that the structures giving rise to one percent procedure must be
modified and proposes a set of reforms intended to allow the ninety-nine percent representation in,
and access to, the process of constructing our shared civil litigation system.”)
Professor Alexander Reinart interviews Professor Brooke Coleman of Seattle Law about her her
article “One percent Procedure” at Cardozo School of Law civil procedure workshop. Link is to
recording of that interview.
Jonathan H. Adler, SYMPOSIUM: BUSINESS IN THE ROBERTS COURT- Introduction: Still in
Search of the Pro-Business Court, 67 Case W. Res. L. Rev. 681 (2017)
Sarah Staszak, SYMPOSIUM: “Procedural Change in the First Ten Years of the Roberts Court”.
Cardozo Law Review 38.2 (2016). Web.
Alexander A. Reinert, MEASURING THE IMPACT OF PLAUSIBILITY PLEADING, 101 Va. L. Rev.
2117 Cordozo Legal Studies Research Paper No. 455 (December, 2015) (Article can be
downloaded from link)
American Bar Association, Human Rights Magazin, “Lurking in the Shadows: The Supreme Court’s
Quiet Attack on Civil Rights: The Supreme Court’s Attack on Civil Procedure, Vol 41, No. 1 (2015)
New York Times “Supreme Court Ruling Altered Civil Suits to Detriment of Individuals” (MAY
18,2015)
Scott E. Stafne, scottstafne.com, Scorched Earth LitigationModel” (September 15, 2015)
The degeneration of the american empire’s legal system has been accompanied by litigation
models which rely on the disparity of resources between the parties (not the facts or law of any
specific case) as the primary basis for resolving cases.
It is my observation that the “Scorched Earth” litigation model, named after General Sherman’s
infamous military campaign, is used in virtually 100% of all foreclosure litigation. This model is based
on the business premise that banks and servicers should spend whatever money is necessary to win
so as to deter homeowners (and any potential lawyers who might be inclined to represent them)
from challenging any foreclosure judicially.
I have personally seen this multi-billion dollar industry spend more in litigation costs than the worth
of the houses they are foreclosing on. I have been told by servicers’ lawyers that their clients do not
factor in defense costs for purposes of settling with homeowners (even where the homeowner has
obtained a summary judgment of liability against the servicer) because they want homeowners and
their lawyers to know that they will spend whatever it takes to win in court.
The point they are making is one Americans should contemplate: Are we now living in a totalitarian
society where the courts are rigged and judicial decisions are decided not by the merits, but the
money the parties are willing and/or can afford for litigation?
III. JURY TRIALS ARE VIRTUALLY EXTINCT IN THE UNITED STATES NOTWITHSTANDING
THEY ARE GUARANTEED BY THE CONSTITUTION.
COLLOQUIUM: CIVIL LITIGATION ETHICS AT A TIME OF VANISHING TRIAL: SETTLEMENT IN
THE ABSENCE OF ANTICIPATED ADJUDICATION, 85 Fordham L. Rev. 2017 (April 2017)
Benjamin Weiser, Trial by Jury, a Hallowed American Right, Is Vanishing, N.Y. Times (Aug. 7,
2016)
Honorable Mark W. Bennett, R
EINVIGORATING AND ENHANCING JURY TRIALS THROUGH AN
OVERDUE JUROR BILL OF RIGHTS: A Federal Trial Judge’s View, 48 Ariz. St. L.J. 481(Fall
2016)(Article can be downloaded from link)
Stephen D. Sussman, “35th Annual Conference of American Conference of American Society of
Trial Consultants “Disappearing Civil Trials” pp. 4-16 (2016);
Suja. A. Thomas, “THE MISSING BRANCH OF THE JURY”, 77 Ohio St. L.J. 1261 (2016) Article
can be downloaded from link) (“ In the past, the Supreme Court has used the doctrines of the
separation of powers and federalism to protect the power of the traditional actors including the
branches, while it has not used any similar doctrine to preserve jury authority. At the same time, the
power of the jury has eroded. This article argues that the jury is effectively a “branch” of government
— similar to the executive, the legislature, and the judiciary — that has not been recognized and
protected.”
Brooke D. Coleman, “THE EFFICIENCY NORM” 56 B.C. L. Rev 1777 (2015)
SYMPOSIUM: THROUGH A GLASS STARKLY: CIVIL PROCEDURE RE-ASSESSED:
CELEBRATING THE SCHOLARSHIP OF STEPHEN SUBRIN: Finding the Civil Trial’s Democratic
Future After Its Demise, 15 Nev. L.J. 1523 (Summer 2015)
Stephen N. Subrin, Thoma O. Main, T
HE FOURTH ERA OF AMERICAN CIVIL PROCEDURE, 162
U. Pa. L. Rev. 1839 (June 2014)
Andre Guthrie Ferguson,”The Jury As Constitutional Identity”, 47 U.C. Davis L. Rev. 1105 (April
2014)
Scott E. Stafne,River City Reader, How Jury Trial Could Have Softened the Blow of the Financial
Crisis (May, 2015)
Scott E. Stafne, scottstafne.com, How the Republic of the United States has been Corrupted (Part
Two – Jury trials)(May 22, 2014)
Honorable Judge William G. Young, (2011)“In Celebration of the American Jury Trial” (2014);
Arthur R. Miller, S
IMPLIFIED PLEADING, MEANINGFUL DAYS IN COURT, AND TRIALS ON THE
MERITS: REFLECTIONS ON THE DEFORMATION OF FEDERAL PROCEDURE, 88 N.Y.U.L. Rev.
286 (April 2013)
Jeffrey W. Stemel, Taking Cognitive Illiberalism Seriously: Judicial Humility, Aggregate Efficiency,
and Acceptable Justice, 43 Loy. U. Chi. L.J. 627 (2012)
Honorable Jennifer Walker Elrod, “Essay, Is the jury Still Out?: A case for the continued viability of
the American Jury?” 44 Tex. Tech. L. Rev. 303 (Winter 2012) (article not available for free down,link
is to Lexis/Nexis, which may charge a fee)
Culhane v. Aurora Loan Servs., 826 F. Supp. 2d 352, 355 *1-3, n.1 (D. Mass. 2011) aff’d 708 F.3d
282 (ist Cir. 2013)
Stephen B. Burbank & Stephen N. Subrin, Litigation and Democracy: Restoring a Realistic Prospect
of Trial, 46 HARV. C.R.-C.L. L. REV. 399, 408 (2011). (The article can be downloaded from the link,
which is to Lexis Advance)
Honorable William G. Young, “A Lament for What Was and Can Yet Be.” 32 Boston College
International and Compararive law Review (2009).
IV. PRO SE LITIGANTS
Jon Goldschmidt, The Pro Se Litigant’s Struggle for Access to Justice: Meeting the Challenge of
Bench and Bar Resistance, 40 Fam. Ct. Rev. 36 (January 2002)
Tiffany Buxton, Foreign Solutions to the U.S. Pro Se Phenomenon, 34 Case W. Res. J. Int’l L. 103
(2002)
Washington Supreme Court, “Washington State 2003 Civil Legal Needs Study” (2003)
Russell G. Pearce, Redressing Inequality in the Market for Justice: Why Access to Lawyers Will
Never Solve the Problem and Why Rethinking the Role of Judges Will Help, 73 Fordham L. Rev.
969, 978 (2004)
Drew A. Swank, IN DEFENSE OF RULES AND ROLES: THE NEED TO CURB EXTREME FORMS
OF PROSE ASSISTANCE AND ACCOMMODATION IN LITIGATION, 54 Am. U.L. Rev. 1537
(August 2005) (“This article suggests that these proponents of greater pro se assistance and
accommodation are wrong. Just as with schools and drinking fountains,’separate but equal’ justice
systems will be neither equal nor just.)
Drew A. Swank, The Pro Se Phenomenon, 19 BYU J. Pub. L. 373 (2005).
ARTICLE: J UDICIAL ASSISTANCE TO SELF-REPRESENTED LITIGANTS: LESSONS FROM
THE CANADIAN EXPERIENCE, 17 Mich. St. J. Int’l L. 601 (2008-2009)
In America, the judiciary has increasingly had to grapple with the question of how far a judge can go
in guiding or assisting an SRL in such a way as to avoid the possibly harsh or unjust consequences
resulting from their lack of familiarity with the judicial process? Despite calls for clarification of the
judge’s role in these circumstances, the current reluctance of the U.S. judiciary to assist SRLs is
fostered by both the traditionally passive role of the adversarial trial judge, and by the general rule of
non-assistance in U.S. case law. Yet most U.S. trial judges have realized that they must assist SRLs
to some extent to avoid the harsh results that can occur when SRLs lacking sufficient legal
knowledge represent themselves in court.
Legal services Corporation, An Updated Report of the Legal Services Corporation, “Documenting
the Justice Gap In America The Current Unmet Civil Legal Needs of Low-Income Americans” (2009)
Gillian K. Hadfield, ”Higher Demand, Lower Supply? A Comparative Assessment of the Legal
Resource Landscape for Ordinary Americans”, 37 Fordham Urb. L.J. 129 (2009) Article can be
obtained from link.
Deborah L. Rhode, S
YMPOSIUM: WHATEVER HAPPENED TO ACCESS TO JUSTICE?, 42 Loy.
L.A. L. Rev. 869 (Summer 2009) (“‘Equal justice under law’ is a principle widely embraced and
routinely violated. Although the United States has the world’s highest concentration of lawyers, it
fails miserably at making their assistance accessible to those who need it most. Litigants who remain
unrepresented are less likely to obtain a fair outcome in court. The gap between our rhetorical
commitments and daily practices regarding access to justice is a function of inadequate funding,
restrictions on cases and activities by government-funded legal aid programs, insufficient concern by
courts, overbroad restrictions on nonlawyer services, and inadequate pro bono involvement by
lawyers and law students. Narrowing the justice gap will require a coordinated effort by all of the
stakeholders-the bench, bar, clients, nonprofits, and legal educators.”)
Michael Correll, F
INDING THE LIMITS OF EQUITABLE LIBERALITY: RECONSIDERING THE
LIBERAL CONSTRUCTION OF PRO SE APPELLATE BRIEFS, 35 Vt. L. Rev. 863 (2011)
Center for American Progress, “The Justice Gap: Civil Legal Assistance Today and Tomorrow”
(2011)
COLLOQUIUM: THE LEGAL PROFESSION’S MONOPOLY ON THE PRACTICE OF LAW:
OVERSTEPPING ETHICAL BOUNDARIES? ( 2014)
Jack P. Stahl, COLLOQUIUM: THE LEGAL PROFESSION’S MONOPOLY ON THE PRACTICE OF
LAW: CRACKS IN THE PROFESSION’S MONOPOLY ARMOR, 82 Fordham L. Rev. 2635 (2014)
Jessica Dixon Weaver, Overstepping Ethical Boundaries? Limitations on State Efforts To Provide
Access to Justice in Family Courts, 82 Fordham L. Rev. 2705 (2014).
Washington Supreme Court, W
ashington State 2015 Civil Legal Needs Study Update (2015)
ARTICLE: A
dversary Breakdown and Judicial Role Confusion in “Small Case” Civil Justice, 2016
B.Y.U.L. Rev. 899 (2016) This article can be downloaded from link.
(“This Article calls attention to the breakdown of adversary procedure in a largely unexplored area
of the civil justice system: the ordinary, two-party case. The twenty-first century judge confronts an
entirely new state of affairs in presiding over the average civil matter. In place of the adversarial
party contest, engineered and staged by attorneys, judges now face the rise of an unrepresented
majority unable to propel claims, facts, and evidence into the courtroom. The adversary ideal favors
a passive judge, but the unrealistic demands of such a paradigm in today’s “small case” civil justice
system have sparked role confusion among judges, who find it difficult to both maintain stony silence
and reach merits-based decisions in the twelve million cases involving unrepresented parties.”)
Lawyerist.com, “Measuring the Access-to-Justice Gap: Nearly 70% of All Civil Defendants Aren’t
Represented” (2016)
ABA Journal, “Can the access-to-justice gap be closed” (2016).
Deborah L. Rhode, W
HITE PAPER: WHAT WE KNOW AND NEED TO KNOW ABOUT THE
DELIVERY OF LEGAL SERVICES BY NONLAWYERS, 67 S.C. L. Rev. 429 (Winter 2016)
(It is a shameful irony that the nation with one of the world’s highest concentrations of lawyers does
so little to make legal services accessible. According to the World Justice Project, the United States
ranks 67th (tied with Uganda) of 97 countries in access to justice and affordability of legal
services.”Equal justice under law” is one of America’s most proudly proclaimed and routinely violated
legal principles. It embellishes courthouse doors, but in no way describes what goes on behind
them. Millions of Americans lack any access to justice let alone equal access. Over four-fifths of the
legal needs of the poor and a majority of the needs of middle-income Americans remain unmet.”)
ABA Commission on the Future of Legal Services.
The Commission presents this compendium of scholarly papers on the future of legal services. With
the generosity of the University of South Carolina Law Review and its faculty advisors and members,
the papers of leading academicians have been gathered.
Table of Contents
FORWARD – William C. Hubbard & Judy Perry Martinez
INTRODUCTION: WHAT WE KNOW AND NEED TO KNOW ABOUT THE STATE OF “ACCESS
TO JUSTICE” RESEARCH – Elizabeth Chambliss, Renee Newman Knake & Robert L. Nelson
WHAT WE KNOW AND NEED TO KNOW ABOUT DISRUPTIVE INNOVATION – Raymond H.
Brescia
WHAT WE KNOW AND NEED TO KNOW ABOUT CIVIL GIDEON – Tonya L. Brito, David J. Pate
Jr., Daanika Gordon, & Amanda Ward
WHAT WE KNOW AND NEED TO KNOW ABOUT COURT-ANNEXED DISPUTE RESOLUTION
–Deborah Thompson Eisenberg
WHAT WE KNOW AND NEED TO KNOW ABOUT PRO BONO SERVICE DELIVERY – April
Faith-Slaker
WHAT WE KNOW AND NEED TO KNOW ABOUT OUTREACH AND INTAKE BY LEGAL
SERVICES PROVIDERS – D. James Greiner
WHAT WE KNOW AND NEED TO KNOW ABOUT IMMIGRANT ACCESS TO JUSTICE – Elinor R.
Jordan
WHAT WE KNOW AND NEED TO KNOW ABOUT ONLINE DISPUTE RESOLUTION – Ethan
Katsh & Colin Rule
WHAT WE KNOW AND NEED TO KNOW ABOUT GAMIFICATION AND ONLINE ENGAGEMENT
– Stephanie Kimbro
WHAT WE KNOW AND NEED TO KNOW ABOUT MEDICAL-LEGAL PARTNERSHIP – Bharath
Krishnamurthy, Sharena Hagins, Ellen Lawton, & Megan Sandel
WHAT WE KNOW AND NEED TO KNOW ABOUT LEGAL STARTUPS – Daniel W. Linna Jr.
WHAT WE KNOW AND NEED TO KNOW ABOUT WATSON, ESQ. – Paul Lippe
WHAT WE KNOW AND NEED TO KNOW ABOUT THE DELIVERY OF LEGAL SERVICES BY
NONLAWYERS – Deborah L. Rhode
WHAT WE KNOW AND NEED TO KNOW ABOUT THE LEGAL NEEDS OF THE PUBLIC –
Rebecca L. Sandefur
WHAT WE KNOW AND NEED TO KNOW ABOUT GLOBAL LAWYER REGULATION – Carole
Silver
WHAT WE KNOW AND NEED TO KNOW ABOUT LEGAL PROCUREMENT – Silvia Hodges
Silverstein
WHAT WE KNOW AND NEED TO KNOW ABOUT LAW SCHOOL INCUBATORS – John Christian
Waites & Fred Rooney
Paul R Tremblay. “Surrogate Lawyering: Legal Guidance, sans Lawyers.” Georgetown Journal of
Legal Ethics, Forthcoming (2017).
ABA Law Journal, “86 percent of low-income Americans’ civil legal issues get inadequate or no
legal help, study says” (June 14, 2017)
Legal Services Corporation, T
he Justice Gap: measuring the Unmet Civil Legal Needs of
Low-income Americans (June 2017);
Scott E. Stafne, scottstafne.com “BETTER TO HAVE ADA ADVOCATE THAN LAWYER IN STATE
COURTS” (July 7, 2017)
V. HEALTH CONSEQUENCES OF FORECLOSURE AND HOMELESSNESS
CDC, Office for State, Tribal and Territorial Support, H
omelessness as a Public Health Law Issue:
Selected Resources(March 2, 2017)
Pam Miller, E
l Abandonado, Church of the Gardens Press (April 2017)
Boston Globe, A
n innovative, practical solution for preserving the health and well-being of the
homeless, March 9, 2017
The Guardian,”Mortality rate for homeless youth in San Francisco is 10 times higher than peers”
(April 14, 2016)
Policy Matters Ohio, Ohio foreclosures: Damage in the wake of housing crisis (November 4, 2016)
Scott Keyes, Surge In Homeless Deaths Expected Over Next Decade Unless We Act (January 21,
2014)
Kriston Capps, S
uicides Related to Foreclosure and Eviction Doubled During the Housing Crisis
(February 20, 2015)
Mariana Arcaya, M. Maria Glymour, Prabal Chakrabarti, Nicholas A. Christakis, Ichiro Kawachi, S.V.
Subramanian, Effects of Proximate Foreclosed Properties on Individuals’ Systolic Blood Pressure in
Massachusetts, 1987 to 2008(Originally published May 12, 2014)
Jason N. Houle PhD, and M
ichael T. Light PhD, T
he Home Foreclosure Crisis and Rising Suicide
Rates, 2005 to 2010(Published Online: May 13, 2014)
Katherine A. Fowler PhD, R. Matthew Gladden PhD, Kevin J. Vagi PhD, Jamar Barnes MPH, and
Leroy Frazier MSPH, I ncrease in Suicides Associated With Home Eviction and Foreclosure During
the US Housing Crisis: Findings From 16 National Violent Death Reporting System States,
2005–2010 (Published Online: July 17, 2014)
Kathleen Ziol-Guest and Ariel Kalil, Frequent Moves in Childhood Can Affect Later Earnings, Work,
and Education The impact of childhood moves between ages 6 and 10 reverberates long into
adulthood (March 2014)
Julia B. Isacs, The Ongoing Impact of Foreclosures on Children (April 8, 2012)
Kathryn L.S. Pettit and Jennifer Comey, The Foreclosure Crisis and Children: A Three-City Study
(March 1, 2012)
Janet Currie Princeton University and NBER Department of Economics and Erdal Tekin Georgia
State University and NBER Department of Economics, Is the Foreclosure Crisis Making Us Sick?
(December 2011)
NHS choices; your health, your choices “Homeless die 30 years younger than average (December
11, 2011)
Thomas Kingsley, Robin Smith, and David Price The Urban Institute, The Impacts of Foreclosures
on Families and Communities (May 2009)
National Coalition for the Homeless Health Care and Homelessness, “Health Care and the
Homeless” (July, 2009)
(“As a result of these factors, homeless people are three to four times more likely to die than the
general population (O’Connell, 2005). This increased risk is especially significant in people between
the ages of 18 and 54. Although women normally have higher life expectancies than men, even in
impoverished areas, homeless men and women have similar risks of premature mortality. In fact,
young homeless women are four to 31 times as likely to die early as housed young women
(O’Connell, 2005). The average life expectancy in the homeless population is estimated
between 42 and 52 years, compared to 78 years in the general population.”)
Jennifer Comey and Michel Grosz, W
here Kids Go: The Foreclosure Crisis and Mobility
In Washington, D.C. (no date provided)
VI. DATA REGARDING NUMBER OF FORECLOSURES IN U.S.
CBS News, A
merica’s foreclosure crisis isn’t over (January 26, 2016)
FDIC, NeighborWorks America, Foreclosure Statistics
Wall Street Journal, Many Who Lost Homes to Foreclosure in Last Decade Won’t Return — NAR
(April 5, 2015)
PBS Newshour, G
et ready for another round of the foreclosure crisis (March 5, 2015)
HuffPost, Foreclosed ‘Zombie’ Homes Exceed 300,000 Properties: Study ( May 30, 2013)
CNN Money, Million-dollar foreclosures rise as rich walk away (February 23, 2012)
ProPublica, Despite Warnings From States, Federal Regulators Failed to Act on Foreclosure
Problems (Nov. 8, 2010)
NBC News, Study: 1
.2 Million Households Lost to the Recession (April 8, 2010)
VII.THE BASIS FOR CREATING A PRIVATE JUSTICE SYSTEM IN LIEU OF ARTICLE III
COURTS.
Andrew D. Bradt “A RADICAL PROPOSAL”: THE MULTIDISTRICT LITIGATION ACT OF 1968,”
165 U.Pa. Rev. 831 (March 2917)(hypothesizing that federal judges knew there was about to be a
mass tort explosion and accordingly developed and lobbied for the passage of of a statute to
concentrate power in the hands of the federal judiciary. This much like the th conduct I hypothesize
occurred when the Supreme Court changed the Federal Rules by abrogating the seminal case of
Conley v Gibson.
Richard d. Freer, EXODUS FROM AND TRANSFORMATION OF AMERICAN CIVIL LITIGATION,
65 Emory L.J. 1491 (2016)
The story of American federal civil litigation over the past half century is one of exodus and of
transformation – exodus from and transformation of the traditional model of “court litigation.” The
exodus has taken various paths, especially contractual arbitration. The Supreme Court has extended
the Federal Arbitration Act to contracts of adhesion and to the adjudication of federal statutory rights.
Thus arbitration has become mandatory for claims by consumers and employees. In approving this
expansion, the Court increasingly makes clear that it sees nothing special about court litigation – that
it and arbitration are mechanisms of equal dignity
Judith Resnik, Diffusing Disputes: The Public in the Private of Arbitration, the Private in Courts, and
the Erasure of Rights, 1
24 Yale L.J. 2804 (2015).
CRISIS in U.S. – Lack of Justice for 99%