The Politics of Access: Examining Concerted State/Private Enforcement Solutions to Class Action Bans
By Myriam Gilles
Procedural and substantive constraints on the ability of ordinary people to access the civil justice system have become all too commonplace. The “justice gap” owes much to cuts in funding for legal aid and court administration, heightened pleading standards, ever-rising costs of discovery, increasingly restrictive views on standing to sue, and the co-opting of small claims court by businesses seeking to collect debts, among other obstacles in the path to the courthouse. But the most consequential impediment, surely, is the enforcement of mandatory arbitration clauses with class action bans, which bar consumers and employees from bringing or being represented in any form of collective litigation. This Article, written for a colloquium dedicated to the persistent problems of representation and access, explores the politics of regaining citizens’ rights to aggregate litigation in the wake of the Supreme Court’s broad endorsement of these class-ban provisions in AT&T Mobility LLC v. Concepcion.
Given the political climate in Washington, D.C., it is a safe bet that federal legislation will not overrule Concepcion anytime soon. Meanwhile, state legislation constraining class-banning arbitration clauses faces the unremitting threat of FAA preemption. But scholars and access-to-justice advocates have begun to focus on a third avenue for overcoming claims— suppressing class action bans, referred to in this Article as “concerted state/private enforcement solutions.” Concerted state/private enforcement can take several forms—whether it’s state Attorneys General engaging private counsel to pursue parens patriae damages cases under the AG’s direction, utilizing a qui tam model, or creating a regime where government enforcers obtain liability verdicts that private parties can use as conclusive proof in individual arbitrations. Each holds its own promises and poses its own challenges. But unlike head-on state legislation, the concerted state/private options are all viable as a legal matter. The question of political viability, however, is more nuanced. This Article explores the unique political calculus for states confronting the implications of the various forms of state/private concerted enforcement activity as a way to restore their citizens’ access to justice in the post-Concepcion era.