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3 Regulation of Private Property Access to Justice It is a settled and invariable principle, that every right, when withheld, must have a remedy and every injury its proper redress. —­John Marshall1 In a decision ripe with symbolism about access to justice in the age of terror, the Supreme Court announced on Monday that visitors to its courthouse will no longer be allowed to enter through the front door. —­Adam Liptak2 I n the last chapter, we described how Federalist Society members have attempted to use the takings clause to oppose regulation of private property. In this chapter, we explore a different strategy for combating regulation—­ limiting access to the courts. Over the past twenty-five years, conservatives have employed a variety of strategies and doctrines to create obstacles to lawsuits that demand changes in public policy or that have a regulatory impact on private business.3 These strategies furthered conservative values—­ a preference for policy to be enacted by legislatures rather than courts, and a preference for the free market, rather than the government, to regulate the economy. Arguments to limit access to the courts found a receptive audience in the Rehnquist Court. As Professor Andrew Siegel has written, that court “expressed a profound hostility to litigation” in “case after case and in wildly divergent areas of the law.”4 Siegel concludes, “[H]ostility to litigation has been, in the end, the most historically significant and all-encompassing theme of the Rehnquist era.”5 The theme has continued in the Roberts Court. Cases that raise issues of the regulation of business practices arise in a variety of settings. For example, a customer signs up with a cell phone provider that promised “free” phones, and then gets billed for the sales tax on the phones. The contract with the company requires arbitration, but does not permit a class of customers to have a joint arbitration. Or a hospital patient suffers serious injuries because of defects in a medical device employed in her treatment. She wants to bring a suit against the manufacturer to get compensation for her increased future medical expenses, but the company claims it cannot be sued because the Food and Drug Administration (FDA) approved the device. Or male employees subject a female 75 employee to sexual harassment and the company is unresponsive to her concerns. She wants to file a lawsuit, but her employment contract specifies that all disputes must be resolved through arbitration. Lawsuits intended to change public policy face a variety of obstacles. Procedural hurdles have grown higher in the last thirty years, including the doctrines of standing (whether the plaintiff has suffered a significant enough injury to challenge the policy), ripeness (whether there is a controversy sufficiently immediate to warrant action by the court, and whether all other remedies that must be exhausted first have been tried), and mootness (whether the controversy at issue is still alive). Government officials are frequently able to claim either absolute or qualified immunity from actions for damages, with the result that the plaintiff’s complaint is dismissed at the outset of proceedings.6 The number of cases dismissed on immunity grounds has grown significantly in recent years. Other doctrines make it difficult for citizens suing the government to get access to the information necessary to challenge government policy. These include executive privilege (which protects communications between the president and his advisors), state secrets privilege (which protects sensitive information that might endanger national security), law enforcement privilege (which protects techniques and strategies that government agents use to investigate crime), and a privilege that protects government informants. The Bush administration used these doctrines very effectively to make it difficult to challenge antiterrorism programs that threatened civil liberties. The Obama administration has continued to make many of the same arguments in ongoing litigation. In other cases, the door to the courthouse is closed when the Supreme Court narrowly interprets the underlying substantive law on which a claim might be made. The court has cut back on the circumstances in which private parties (as opposed to the government) may bring actions under federal regulatory statutes, for example in Central Bank of Denver v. First Interstate Bank of Denver (no private claims for aiding and abetting under § 10(b) of the Securities and Exchange Act of 1934), and in Alexander v. Sandoval (no private right of action to enforce disparate impact regulations under Title VI of the Civil Rights Act of 1964).7 The court often refuses to recognize a cause of action...


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MARC Record
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