By: Sam Bull
Edited By: Amy kim and emily yang
In the American legal system, there exists the concept of a criminal justice funnel, which describes the pattern of crimes being “lost” after every step in the criminal justice system due to police and court discretion, leading to a much smaller number of crimes punished than committed. What gains less attention but holds equal importance is the similarly funneled structure of the civil court system, in which many civil wrongs sustained by ordinary citizens are dropped or dismantled at each step in the process leading up to trial (as well as once in trial for the cases that do make it). This civil justice funnel operates through a variety of systemic mechanisms, contributing to an extremely uneven playing field for “one-shotters” (e.g. individuals) with limited time, money, resources, or experience, while favoring the “repeat players” (e.g. corporations) in the civil justice system. The civil justice funnel limits everyday Americans on two fronts—both in access to courts and the chances of winning in cases that do make it to court—providing an advantage for those in positions of power and privilege and creating a source of significant institutional inequality in the American legal system.
The civil justice funnel severely limits the number of cases that can actually make it to court: cases of discrimination and personal injury that are brought to civil court make up a small fraction of those injustices that occur. Personal injury suits, for example, are filed in just two to four percent of potential cases. [1] A significant factor to these low numbers is the multi-tiered structure for bringing forth a case against wrongdoing. An individual who has been wronged must first be aware of such and translate their experiences into a specific injury—this is called naming. The next step, blaming, requires having the understanding and means to attribute the wrongdoing to a specific cause or entity, thus turning the injury into a grievance. Finally, the individual must undertake claiming, or going to the defendant to right the wrong (i.e., filing a suit and going to court). [2] Since these small players often lack legal consciousness and funds for legal counsel — funds that their opponents in court likely possess as repeat players — it is likely that they lack a strong grasp on what makes a good case to be able to make it very far down the civil justice funnel.
The other key reasons for the low percentage can most clearly be illustrated by America’s history of tort reform. During the rights revolution of the 1960s and 70s, the civil justice funnel widened for individual plaintiffs through legislation like the Civil Rights Attorneys Fees Award Act of 1976, [3] which guaranteed reasonable attorney’s fees for victorious plaintiffs, and Warren Supreme Court rulings like Monroe v. Pape (1961), which introduced a damages remedy for unauthorized or unconstitutional official actions. [4] However, beginning in the 1970s, organizations, interest groups, and corporations fought back, such as through the creation of the American Tort Reform Association in 1986, which led to mass publicity campaigns aimed at convincing Americans to support restrictions on the ability to sue in civil court by emphasizing widely shared values like fairness, truth, and efficiency. [5] Then, too, came Supreme Court decisions limiting individuals’ ability to access the civil justice system. In 1989, for example, in Will v. Michigan Department of State Police, [6] the Rehnquist Court held that states, state agencies, and state officials acting in their official capacities were not “persons” for purposes of 42 U.S.C. Section 1983, [7] thereby making it much more difficult to bring suit against a state actor for a civil rights violation. In Buckhannon Board and Care Home v. W. Va. Dept. of Health and Services (2001), [8] the Court walked back the ground gained by the Civil Rights Attorneys Fees Award Act, making it far riskier and more expensive to take a case to civil court. [9] The attack on the rights revolution continues into the 21st century; legislative efforts in more recent years, such as the Private Securities Litigation Reform Act (1995) [10] and the Class Action Fairness Act (2005), [11] have further limited court access. [12]
For the small percentage of individuals whose cases actually make it to the civil courts, another host of issues awaits—and here is where the unbalanced relationship between one-shotters and repeat players proves most significant. One-shotters are litigants, usually individuals, who rarely go to court, while repeat players are those, usually corporations, organizations, or interest groups, that have much more experience with litigation as well as much deeper pockets. [13] For many of these repeat players, conducting litigation is a routine and required part of business, meaning that entire branches of an organization (and their resources) are dedicated to hiring lawyers, forming general outlines for types of legal arguments and offering settlement terms to litigants. These repeat players often have more than just the specific case in mind: they also have both the incentive and capacity to achieve favorable rules that apply to disputes in the future. Thus, not only do they have the money, but these entities are also often incentivized to be in court, for a court’s decision in one case can shape decisions in future cases. Over time, enough of these civil court decisions strung together will shape the relevant rule of law. [14] The motivation of these repeat players to shape future policy around their interests combined with the resources at their disposal to pay for top-tier legal counsel is so powerful that individual litigants, who are often poor and likely to only have attained a high school education, [15] rarely have a realistic shot at winning their case.
The civil justice funnel (and the court decisions and judicial retrenchment legislation that have formed it) has often been overlooked by mainstream political science and the media, yet it has detrimental consequences on the American civil legal system. By limiting both access to civil courts and the chances of success once in the courts, this funnel contributes significantly to systemic inequality regarding access to opportunity in American society. The rights revolution of the mid-20th century may have made progress toward widening the narrow civil justice funnel, but the subsequent judicial and legislative dismantling of that progress has led to stagnant numbers of cases brought to court. More Americans are now left with limited avenues to seek redress for civil wrongs perpetrated against them; for example, civil rights cases have remained relatively static since 1997 at around 80,000 annual charges, and while increasing slightly under Obama, have decreased most recently under Trump. [16] The United States government leaves most of its civil rights issues to private enforcement (going to court) rather than taking them into its own hands (through actions like Department of Justice investigations); with a funnel any narrower than it is currently, we run the risk of losing all accountability of powerful repeat players in the civil justice system, and individuals who have been wronged will have even less of an opportunity to have their grievances redressed.
NOTES:
[1] Baum, Lawrence. “American Courts: Process and Policy.” 7th ed., Wadsworth, 2013.
[2] Felstiner, William L.F. et al.“The Emergence and Transformation of Disputes: Naming, Blaming, Claiming” Law & Society Review, Vol. 15, No. 3/4, 1980-1981. https://www.jstor.org/stable/pdf/3053505.pdf?refreqid=excelsior%3Aacc889b6bd58fb5e430bcbca5b39d056&ab_segments=&origin=
[3] United States Code, “Civil Rights Attorneys Fees Award Act of 1976,” 90 stat. 2641, 94th Cong. (1976)
[4] Dodd, Lynda G. “The Rights Revolution in the Age of Obama and Ferguson: Policing, the Rule of Law, and the Elusive Quest for Accountability.” Perspectives on Politics, Vol. 13, No. 3, September 2015, pp. 657-679. American Political Science Association.
https://www.jstor.org/stable/pdf/43867348.pdf?casa_token=98_ZZisyevQAAAAA:6N0BIecP7B_OL-wPJ8aS0FtyZOyYfyhaOa728PUvbDikBZ-jCeqv3Pa-M9ZvRTbW-p_rb-XCCvGIobZLaqp4iKUFtbWaVUz3-UHoMNSWpVJwZNTimGrs
[5] Hubbard, F. Patrick. “The Nature and Impact of the Tort Reform Movement,” 35 Hofstra L. Rev. 437. 2006.
https://law.hofstra.edu/pdf/academics/journals/lawreview/lrv_issues_v35n02_cc1.hubbard.final.pdf
[6] United States, Supreme Court. Will v. Michigan Department of State Police. 15 June 1989. US Supreme Court Center, Justia, https://supreme.justia.com/cases/federal/us/491/58/
[7] United States Code, “Civil Rights Act of 1871,” 42nd Cong. §1983 (1871)
[8] United States, Supreme Court. Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health and Human Resources. 29 May 2001. US Supreme Court Center, Justia, https://supreme.justia.com/cases/federal/us/532/598/
[9] Dodd, Lynda G. “The Rights Revolution in the Age of Obama and Ferguson: Policing, the Rule of Law, and the Elusive Quest for Accountability.” Perspectives on Politics, Vol. 13, No. 3, September 2015, pp. 657-679. American Political Science Association. https://www.jstor.org/stable/pdf/43867348.pdf?casa_token=98_ZZisyevQAAAAA:6N0BIecP7B_OL-wPJ8aS0FtyZOyYfyhaOa728PUvbDikBZ-jCeqv3Pa-M9ZvRTbW-p_rb-XCCvGIobZLaqp4iKUFtbWaVUz3-UHoMNSWpVJwZNTimGrs
[10] United States Code, “Private Securities Litigation Reform Act of 1995,” H.R. 1058, 104th Cong. (1995)
[11] United States Code, “Class Action Fairness Act of 2005,” S. 5, 109th Cong. (2005)
[12] Staszak, Sarah. “Institutions, Rulemaking, and the Politics of Judicial Retrenchment.” Studies in American Political Development, Vol. 24, No. 2, 2010, pp. 168–189. https://www-cambridge-org.turing.library.northwestern.edu/core/services/aop-cambridge-core/content/view/55E9D8D31338E77327B2B77E34207BAC/S0898588X10000040a.pdf/institutions-rulemaking-and-the-politics-of-judicial-retrenchment.pdf
[13] Grossman, Joel B. et al. “Do the "Haves" Still Come Out Ahead?” Law & Society Review, Vol. 33, No. 4, 1999, pp. 803-810.https://www.jstor.org/stable/pdf/3115150.pdf?refreqid=excelsior%3A5ce0fddeca980cfc11c5ed47351f0639&ab_segments=&origin=
[14] Baum, Lawrence. “American Courts: Process and Policy.” 7th ed., Wadsworth, 2013.
[15] Merry, Sally Engle. “Getting Justice and Getting Even: Legal Consciousness Among Working-Class Americans.” University of Chicago Press. 1990. https://northwestern.ares.atlas-sys.com/areslms//ares.dll?Action=10&Type=10&Value=179073&SessionID=J123213308
[16] U.S. Equal Employment Opportunity Commission. EEOC. https://www.eeoc.gov/data/charge-statistics-charges-filed-eeoc-fy-1997-through-fy-2021
BIBLIOGRAPHY:
Baum, Lawrence. “American Courts: Process and Policy.” 7th ed., Wadsworth, 2013.
Felstiner, William L.F. et al.“The Emergence and Transformation of Disputes: Naming, Blaming, Claiming” Law & Society Review, Vol. 15, No. 3/4, 1980-1981. https://www.jstor.org/stable/pdf/3053505.pdf?refreqid=excelsior%3Aacc889b6bd58fb5e430bcbca5b39d056&ab_segments=&origin=
United States Code, “Civil Rights Attorneys Fees Award Act of 1976,” 90 stat. 2641, 94th Cong. (1976)
Dodd, Lynda G. “The Rights Revolution in the Age of Obama and Ferguson: Policing, the Rule of Law, and the Elusive Quest for Accountability.” Perspectives on Politics, Vol. 13, No. 3, September 2015, pp. 657-679. American Political Science Association.
https://www.jstor.org/stable/pdf/43867348.pdf?casa_token=98_ZZisyevQAAAAA:6N0BIecP7B_OL-wPJ8aS0FtyZOyYfyhaOa728PUvbDikBZ-jCeqv3Pa-M9ZvRTbW-p_rb-XCCvGIobZLaqp4iKUFtbWaVUz3-UHoMNSWpVJwZNTimGrs
Hubbard, F. Patrick. “The Nature and Impact of the Tort Reform Movement,” 35 Hofstra L. Rev. 437. 2006.
https://law.hofstra.edu/pdf/academics/journals/lawreview/lrv_issues_v35n02_cc1.hubbard.final.pdf
United States, Supreme Court. Will v. Michigan Department of State Police. 15 June 1989. US Supreme Court Center, Justia, https://supreme.justia.com/cases/federal/us/491/58/
United States Code, “Civil Rights Act of 1871,” 42nd Cong. §1983 (1871)
United States, Supreme Court. Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health and Human Resources. 29 May 2001. US Supreme Court Center, Justia, https://supreme.justia.com/cases/federal/us/532/598/
Dodd, Lynda G. “The Rights Revolution in the Age of Obama and Ferguson: Policing, the Rule of Law, and the Elusive Quest for Accountability.” Perspectives on Politics, Vol. 13, No. 3, September 2015, pp. 657-679. American Political Science Association. https://www.jstor.org/stable/pdf/43867348.pdf?casa_token=98_ZZisyevQAAAAA:6N0BIecP7B_OL-wPJ8aS0FtyZOyYfyhaOa728PUvbDikBZ-jCeqv3Pa-M9ZvRTbW-p_rb-XCCvGIobZLaqp4iKUFtbWaVUz3-UHoMNSWpVJwZNTimGrs
United States Code, “Private Securities Litigation Reform Act of 1995,” H.R. 1058, 104th Cong. (1995)
United States Code, “Class Action Fairness Act of 2005,” S. 5, 109th Cong. (2005)
Staszak, Sarah. “Institutions, Rulemaking, and the Politics of Judicial Retrenchment.” Studies in American Political Development, Vol. 24, No. 2, 2010, pp. 168–189. https://www-cambridge-org.turing.library.northwestern.edu/core/services/aop-cambridge-core/content/view/55E9D8D31338E77327B2B77E34207BAC/S0898588X10000040a.pdf/institutions-rulemaking-and-the-politics-of-judicial-retrenchment.pdf
Grossman, Joel B. et al. “Do the "Haves" Still Come Out Ahead?” Law & Society Review, Vol. 33, No. 4, 1999, pp. 803-810.https://www.jstor.org/stable/pdf/3115150.pdf?refreqid=excelsior%3A5ce0fddeca980cfc11c5ed47351f0639&ab_segments=&origin=
Baum, Lawrence. “American Courts: Process and Policy.” 7th ed., Wadsworth, 2013.
Merry, Sally Engle. “Getting Justice and Getting Even: Legal Consciousness Among Working-Class Americans.” University of Chicago Press. 1990. https://northwestern.ares.atlas-sys.com/areslms//ares.dll?Action=10&Type=10&Value=179073&SessionID=J123213308
U.S. Equal Employment Opportunity Commission. EEOC. https://www.eeoc.gov/data/charge-statistics-charges-filed-eeoc-fy-1997-through-fy-2021
