Trump’s Attacks on Civil Justice
By Sean Lally, Staff Writer
By now, it’s no secret that the Trump administration has been pursuing policies that favor big businesses and leave consumers and workers to fend for themselves. To that end, the White House has signed-off on a number of measures that weaken civil rights.
Earlier this month, the Center for Justice and Democracy at New York Law School released “Trump’s Civil Justice Scorecard,” and needless to say, the President did not score well. The document outlines a litany of actions taken by the current administration to gut what few civil protections are left for the “little guy [or girl].”
In what follows, we will discuss a few of those actions and (briefly) offer some analysis that’s circulating around these policies.
One of the more egregious measures came in the form of an executive order, promulgated in March just before Equal Pay Day and amidst the growing controversy emanating from the now-ubiquitous #MeToo movement. The order rescinded the Fair Pay and Safe Workplaces executive order, signed by former-President Barack Obama in 2014.
The Obama-era policy sought to sure-up certain workplace protections, tighten restrictions on discrimination against female employees, simplify processes for reporting sexual harassment and secure equal pay for women. In one fell swoop, Trump did away with these protections – a move that could only be seen as an affront to women and the entire #MeToo movement.
In an interview with NBC, Noreen Farrell, a member of the Equal Rights Advocates, spoke bluntly about the order: “We have an executive order that essentially forces women to pay to keep companies in business that discriminate against them—with their own tax dollars.” She continued, “It’s an outrage.”
The administration has also taken aim at civil protections for consumers. The Consumer Financial Protection Bureau (CFPB) – an agency that is currently run by Mick Mulvaney, who would dissolve the Bureau if he could – instituted a rule last July that would have secured consumers’ rights to pursue class action suits against financial institutions.
In recent history, major banks have started to include mandatory arbitration agreements in their consumer contracts. These agreements force customers to take all complaints to a black-box arbitration and preempt collective action. As a result, many have argued that forced arbitration clauses undermine the Seventh Amendment, according to which, “the right of trial by jury shall be preserved."
Republicans Argue in Favor of Arbitration
Republicans – who wave the Second-Amendment flag but say nothing of the Seventh Amendment – have argued that black-box arbitration is more beneficial to consumers than a proper trial.
Senator John Cornyn offered the standard conservative argument: “Now, arbitration is a widely accepted method of resolving disputes between consumers and banks and other financial institutions." He continued, “And it actually increases the benefit that flows to the consumer, as opposed to the alternative, which is class-action lawsuits, which enriches lawyers where consumers get pennies on the dollar."
Against Injured Patients
In its recent FY2019 Budget Proposal, the administration proposed placing severe limitations on medical malpractice liability, purportedly to diminish health care costs by 0.4-0.5 percent. A letter from the Center for Justice & Democracy outlines the main thrust of the proposal. If accepted by Congress, the measure would cap noneconomic damages at $250,000, effectively preempting state and local authority.
Moreover, attorneys’ fees would be subject to review by the courts, and plaintiffs would have to submit as evidence other sources of compensation – such as auto insurance and workers’ comp. Medical professionals would be given “safe harbor,” according to “evidence-based clinical practice guidelines.” The federal government would also set-up panels and tribunals to review medical malpractice cases – yet another move to undermine state and local authority.
Citing the report, Medical Injustice: The Case Against Health Courts, the Center for Justice & Democracy suggests that tribunals would only exacerbate the problem of negligence: Tribunals “would entail some huge potential increases in total system costs.... If we take health care proponents at their word, their goal is to bring ... currently non- claiming people into the process.” But this “would multiply the number of claims involving negligence by a factor between 33 and 50.”
These are just three policy measures supported by the current administration. Looking ahead, we will have to wait and see whether Congress supports draconian limitations on medical malpractice claims.