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December 19, 2014

HOT BLAST: Looking deeply at the high court

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Posted: Friday, August 1, 2014 12:00 pm

More from the Supreme Court. In a fascinating book review of three works - Uncertain Justice: The Roberts Court and the Constitution by Laurence Tribe and Joshua Matz, In the Balance: Law and Politics on the Roberts Court by Mark Tushnet and Scalia: A Court of One by Bruce Allen Murphy - David Cole offers this high court analysis:

On one very important issue, however, the Roberts Court has been unremittingly conservative: access to judicial remedies for legal wrongs. At every stage, it has favored rules that make it more difficult to pursue justice in the courts, so much so that Tribe and Matz call it the “anti-court Court.” It has imposed higher “pleading” standards on complaints, ensuring that more lawsuits can be dismissed by trial judges at the threshold, before plaintiffs are able to obtain discovery from defendants. It has upheld contract provisions that require consumers and employees to pursue remedies against corporations through arbitration favored by employers rather than in court. It has presumptively barred classwide arbitration, even where that means that some forms of illegal conduct will never be remedied. This is the case, for example, when a corporation has fraudulently bilked thousands of consumers out of amounts of money too small to warrant individual litigation, while its standard contracts require that all disputes be arbitrated on a one-by-one basis.

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