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Has the Supreme Court Undermined Civil Rights Enforcement?

Does a House bill about legal civil procedures provide a way to restore the protection of civil rights in America, or is it an unwarranted gift to trial lawyers that could be “paralyzing if not deadly” to the federal government?

That’s the question a subcommittee of the House Judiciary Committee examined Wednesday. Echoing a recent parallel hearing in the Senate, lawmakers and witnesses considered whether the Supreme Court’s recent rulings in two key cases undermined the ability of victims to have their day in court, or protected business and government from costly and intrusive lawsuits.

As in the Senate, House lawmakers appear divided along party lines. Democrats and their witnesses say that the Supreme Court’s recent decisions in Bell Atlantic v. Twombly and Ashcroft v. Iqbal have gutted the civil rights and antitrust laws and imposed an unfair and often insurmountable burden that will doom many valid claims. Republicans and their witnesses, meanwhile, say the court did the right thing to help reduce frivolous lawsuits that destroy small businesses and drag busy government officials into court unnecessarily.

Rep. Jerrold Nadler (D-N.Y.), who testified at Wednesday’s hearing, has introduced legislation to effectively turn back the clock to before the Supreme Court’s rulings by restoring the previous standard for filing claims.That legislation, HR 4115, the Open Access to Courts Act, was the focus of the hearing.

The key question is, should a victim filing a lawsuit be required to produce evidence of specific credible facts supporting her claims in order to be allowed to proceed with the case? In the past, courts have required only “a short and plain statement” of the claims. The facts are adduced in the course of the lawsuit through a legal process known as “discovery.”

For those who view most lawsuits as frivolous, the Supreme Court’s new standard is a welcome change. Rep. Bob Goodlatte (R-Va.) argued Wednesday that the high court’s recent requirement “seems to me to be very reasonable.” The proposed legislation, on the other hand, he argued, “is an economic stimulus package for trial lawyers.”

The Democrats’ witnesses, such as Eric Schnapper, law professor at University of Washington and a former attorney for the NAACP Legal Defense Fund, countered that the two recent Supreme Court cases “brought about sweeping changes in the lower courts, all for the worse.” In discrimination cases, now, so long as “discriminatory officials do a good job covering their tracks, under Iqbal and Twombly they can cut off any legal challenge before discovery is available to unearth their records or force them to answer questions under oath,” he said. The new standard “requires proof of a smoking gun,” which could doom many meritorious cases at the outset, he testified.

Gregory Katsas, a Justice Department official in the Bush administration who defended former Attorney General John Ashcroft and FBI Director Robert Mueller in the Iqbal case and now defends corporations at a private law firm, warned that the proposed legislation would “open the floodgates” for “fishing expeditions – intrusive and expensive discovery into implausible and insubstantial claims.” That would “impose massive costs on defendants who have engaged in no wrongdoing.”

When it comes to cases against government officials, such as Iqbal — which alleged that senior Bush administration officials discriminated against Muslims by improperly detaining them after the Sept. 11 terrorist attacks — “such discovery would vitiate an important component of the officials’ qualified immunity” even where the claims are against individual government officials “for actions undertaken to prosecute wars abroad or to respond to national?security emergencies at home,” said Katsas. “Such a result,” he added, “would be paralyzing if not deadly.”

Both sides came armed with statistics to support their case that the recent Supreme Court decisions were either a “sea change” in the law that decimated the ability of civil rights claimants to pursue their cases, or were merely a logical interpretation of existing law and had little impact on the actual outcome of cases in court.

As several of the expert witnesses pointed out, however, the statistics don’t really tell you all that much. Even if cases are being filed or dismissed at about the same rate as before, there’s no telling how many cases haven’t been filed because the new standard would doom them, or how many defense lawyers are relying on the new standards to ask courts to dismiss cases that they wouldn’t have dared tried to get dismissed so early in the game before.

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