Protecting Access to Civil Justice

The headline above is a quote from former West Virginia Supreme Court Justice Richard Neely, describing what his role was as an arbitrator at the National Arbitration Forum (NAF), a for-profit company hired to enforce mandatory arbitration clauses for credit card consumer loans.  "NAF is nothing more than an arm of the collection industry hiding behind a veneer of impartiality," says Richard Neely.

In a devastating expose by BusinessWeek, Neely and other former arbitrators describe an arbitration system stacked completely against consumers-- a system where creditors win 99.8% of all disputes involving companies ranging from Bank of America to Sears to Citgroup. Arbitration clauses buried in the fine print of credit card offers means consumers lose the right to have disputes decided in an independent court and instead are forced into corporation-selected arbitration firms.

Over the past decade, elections for state high court seats have gone from sleepy, mildly partisan affairs to major political battles with huge campaign spending, millions in independent special interest advertising, and misleading and negative attacks in the forefront.  TV advertising is now apart of virtually all (91%) contested state supreme court elections, up from about one in five elections in 2000.  And in 2006 business groups were the source of more than 90% of those ads.  Business groups are also the source of almost half of all campaign contributions in these races.

James Madison, one of the main drafters of the Constitution and the fourth President, wrote that, "Trial by jury in civil cases is as essential to secure the liberty of the people as any one of the pre-existent rights of nature." Yet, today, consumers, employees and victims of corporate negligence are increasingly being denied access to justice through the courts. 

In one more example of lax federal agencies being empowered to block tougher state protection of consumers, the Supreme Court ruled yesterday that states are barred from protecting consumers from faulty medical devices, such as breast implants, if the Federal Food and Drug Administration (FDA) has already approved those devices.