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Tilting the Scales Of Justice: Conservatives’ Multi-Front Assault on Access to the Courts

Conservatives have been engaged in a long-term campaign to promote the agenda of business advocates to restrict individuals’ access to the courts. In Congress, conservatives have repeatedly introduced legislation designed to substantially obstruct individuals’ access to the courts when corporations and other powerful organizations violate their rights. In addition, conservatives have pursued this courthouse door-closing agenda in the federal courts, and, more obscurely but not insignificantly, before committees of the Federal Judicial Conference, which are appointed by the Chief Justice to develop amendments to the Federal Rules of Civil Procedure. At this juncture, business interests have already moved far along in achieving significant components of their agenda, both through legislation and Congressional lobbying as well as through strategic federal court litigation during the tenure of former Chief Justice William Rehnquist and current Chief Justice John Roberts.
 
Even when Congress tends strongly towards conservative interests guided by business advocates, as it does now in both chambers, progressives can successfully beat back anti-civil justice legislation. They did exactly that during the last budget battle by forcing the exclusion of Chamber-backed language aimed at blocking a pending Consumer Financial Protection Bureau (CFPB) rule barring the use of class action bans in arbitration clauses in consumer financial agreements. This issue is even more crucial than ever as we contemplate the future and importance of the U.S. Supreme Court. The purpose of this Special Report is to provide analysis and background that will enable broader understanding of these multi-front court access narrowing efforts, their origins, purposes, provisions, and effects, so as to inform and strengthen advocacy across all these arenas.