A half-century ago, the U.S. civil justice system was a much-admired, well-organized process for resolving disputes, generally in public, before juries and independent judges. Today, the system and its participants are often ignored or vilified, public trials are becoming a rarity, many judicial processes occur out of the public eye, and all but the best-resourced litigants are effectively denied full access to the courts and assistance of counsel. The mere act of filing a claim is often avoided by citizens or is rendered either impractical or outright impossible. The important role historically played by litigation in securing private and public rights, checking corporate and personal abuses, and righting wrongs has been seriously impaired.

Has this been a natural evolutionary process of our legal system, or has “war” been declared on the civil justice system, with public accountability seriously undermined?

The major changes have included:

• a marked decrease in court filings and public trials;
• a vast increase in the use of court-annexed or private alternative dispute resolution, often imposed through adhesion contracts and conducted in secret proceedings that leave no public record;
• changes to court rules that predominantly benefit one side, often imposing high costs on litigants early in the litigation process and effectively discouraging such litigation;
• aggressive motion practice intended to avoid decisions on the merits;
• routine use of protective orders, file sealing, and confidentiality “agreements” that keep civil litigation out of the public eye and undermine its deterrent functions;
• frequent involvement of federal and state legislatures in limiting the powers of the civil courts through such mechanisms as preemption, creation of immunities for favored industries, shortened statutes of limitation, statutes of repose, limits on damage awards and other intrusions on the function of civil juries and the discretion of judges, cost-shifting regimes that threaten to bankrupt ordinary citizens if they dare to enter into litigation, jury fees and/or lack of funding for juries and jury trials that undercut the right to trial by jury;
• underfunding of the courts; and
• severe limitations on the ability of groups of similarly situated citizens to aggregate small claims in class actions against larger, better-funded entities.

There is growing evidence that these changes do more than make civil litigation difficult—they stifle claim-making entirely, thus providing increasing protection for better-funded entities to act without the threat of accountability within American society.

Final conference papers are available in Emory Law Journal, Vol. 65, Iss. 6.