Judge Jed Rakoff Throws Down Gauntlet to Judges on Lack of Due Process in America

[Note: This item comes from friend David Rosenthal. DLH]

Judge Jed Rakoff Throws Down Gauntlet to Judges on Lack of Due Process in America
By Yves Smith
Nov 8 2016

In Why You Won’t Get Your Day in Court in the New York Review of Books, judge Jed Rakoff offers a measured yet devastating critique of how all but the richest Americans lack effectively lack access to the courts. Rakoff, a highly regarded securities law expert best known for refusing to rubber-stamp SEC settlements that he deemed provided him with too little information to determine whether they were fair, walks through why Americans are shortchanged:

Over the past few decades, ordinary US citizens have increasingly been denied effective access to their courts. There are many reasons for this. One is the ever greater cost of hiring a lawyer. A second factor is the increased expense, apart from legal fees, that a litigant must pay to pursue a lawsuit to conclusion. A third factor is increased unwillingness of lawyers to take a case on a contingent-fee basis when the anticipated monetary award is modest. A fourth factor is the decline of unions and other institutions that provide their members with free legal representation. A fifth factor is the imposition of mandatory arbitration. A sixth factor is judicial hostility to class action suits. A seventh factor is the increasing diversion of legal disputes to regulatory agencies. An eighth factor, in criminal cases, is the vastly increased risk of a heavy penalty in going to trial.

For these and other reasons, many Americans with ordinary legal disputes never get the day in court that they imagined they were guaranteed by the law. A further result is that most legal disputes are rarely decided by judges, and almost never by juries. And still another result is that the function of the judiciary as a check on the power of the executive and legislative branches and as an independent forum for the resolution of legal disputes has substantially diminished—with the all-too-willing acquiescence of the judiciary itself.

Rakoff goes through all of theses issues and explains the consequences, which include more people attempting to represent themselves in court, where they lose at a much higher rate than parties that have counsel. Readers of this site know how common it was during the foreclosure crisis for homeowners to attempt to defend themselves, with little success. Even now, I regularly have individuals who are trying to keep their homes or overturn a successful foreclosure e-mail me along with a long list of other people which regularly includes prominent officials like Elizabeth Warren. Even when they might have a germ of an argument, these missives are often so screechy and poorly organized that they come off as being the work of cranks rather than those at the end of their ropes. And this is reaction of someone sympathetic to the idea that the servicer done them wrong.

As bad as the situation is in civil cases, it’s worse on the criminal side of the bar. Even though defendants do get representation, court appointed lawyers are rarely a match for prosecutors. And the issue isn’t simply that hiring good counsel is costly. It’s also that the consequences of losing a criminal case are draconian, and even with the best representation, litigation is still a crapshoot. Recall that Aaron Swartz killed himself because the cost of defense in a Federal case starts at $1.5 million, which would have impoverished his parents, and if he lost, he faced up to 35 years in prison and fines of up to $1 million.


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