2011 Rule of Law Index: America needs to provide better access to its civil justice system

Here’s something to ponder for the 4th of July weekend: The World Justice Project’s 2011 Rule of Law Index concludes that the United States is among the nations in North America and Western Europe that need to improve access to their civil justice systems.

About the Index 

The World Justice Project describes itself as “a global, multidisciplinary initiative to strengthen the rule of law for the development of communities of opportunity and equity,” initiated by the American Bar Association and various global organizations.

Its second annual Rule of Law Index (pdf here) is a “quantitative assessment tool designed to offer a comprehensive picture of the extent to which countries adhere to the rule of law, not in theory, but in practice.” Written by Mark David Agrast, Juan Carlos Botero, and Alejandro Ponce, the 2011 Index is developed from public opinion surveys and input from legal experts in the respective countries.

Western Europe and North America

Because most readers of this blog are from the U.S., let’s center on the 2011 Index’s findings concerning the region of Western Europe and North America. The executive summary concludes:

Countries in Western Europe and North America tend to outperform most other countries in all dimensions. . . . The greatest weakness in Western Europe and North America appears to be related to the accessibility of the civil justice system, especially for marginalized segments of the population. . . . These are areas that require attention from both policy makers and civil society to ensure that all people are able to benefit from the civil justice system.

Americans, take note: “In most dimensions, countries in Western Europe obtain higher scores than the United States.”

Employment disputes in America

The 2011 Index results carry great significance for those seeking legal redress for wrongful termination, employment discrimination and violations of civil rights, and bullying and abuse at work. Here are what I see as some of the hot spots:

Despite America’s supposed overproduction of lawyers, obtaining affordable, quality legal assistance for civil claims can be a daunting task for all but the wealthy. Paying a lawyer by the billable hour can run up a huge tab very quickly. Those who opt for contingency fee arrangements — i.e., paying the lawyer a percentage of monies recovered in a successful lawsuit or settlement — often find themselves with little money left from the award even though they’ve “won.”

Furthermore, even with competent counsel, our systems for resolving employment disputes are costly and torturous for all parties, but especially for plaintiffs who must navigate bewildering administrative and court procedures in an attempt to secure justice. Frequently they must litigate their claims against a highly-paid team of lawyers representing their employer, the legal equivalent of a David vs. Goliath scenario.

Finally, the substance of our employment protections is lacking compared to many other nations. America — unlike many of its North American and European neighbors — adheres to the rule of at will employment, which means that workers can be terminated for any reason or no reason at all. Our labor union density is lower. We are well behind many other countries in fashioning legal protections against workplace bullying and abuse.

It is a shame — actually, shameful — that a nation founded on the rule of law is so stingy in granting legitimate access to its civil justice system for the vast share of its citizens. This is especially the case in employment disputes, where the stakes often implicate someone’s livelihood and career.

***

For a post about the 2010 Rule of Law Index, please go here.

I’ve expounded upon some of the ideas above in my law review article, “Human Dignity and American Employment Law,” which can be downloaded without charge, here.

Disclosure note: I was invited to serve as a Contributing Expert to the 2011 Rule of Law Index, which involved completing a lengthy survey on labor relations law & policy and the general state of the legal system in America.

Does Wisconsin judge David Prosser need anger management counseling?

Wisconsin state Supreme Court Justice David Prosser seems to have trouble controlling his considerable temper, and liberal female Justices on the Court appear to be his targets.

Todd Richmond of the Associated Press reports (link here):

Liberal Justice Ann Walsh Bradley has accused conservative Justice David Prosser of trying to choke her during an argument in her state Capitol office on June 13, the day before the court handed down a decision upholding a new law that eliminates most public employees’ collective bargaining rights. Prosser has denied the allegations.

Richmond further reports that the local county sheriff and the state’s judicial oversight commission have commenced investigations.

Other news reports coming out of Wisconsin indicate that Justice Bradley recommended to her judicial colleague that he seek anger management counseling.

Emerging track record

Earlier this year, I wrote about incivility on the Wisconsin high court, including a previous incident involving Justice Prosser:

The justices have been engaging in an ugly and now public feud, with one member of the court – Justice David Prosser — calling  ”Chief Justice Shirley Abrahamson a ‘bitch’ behind closed doors and threaten[ing] to ‘destroy her’ more than a year ago when the court split over removing fellow Justice Michael Gableman from a criminal case as he faced an ethics allegation,” as reported here by Meg Jones of the Milwaukee Journal Sentinel.

Soon after this incident was reported, Prosser barely held onto his seat on the Supreme Court, narrowly winning re-election over a little-known liberal female challenger.

The A.P.’s Richmond adds that “questions about Prosser’s temper date back to his days as a Republican legislator.”

I can see clearly now

When I was interviewed in March about the situation by the Wisconsin Law Journal (link here), I played it close to the vest, taking care not to jump to conclusions because it seemed premature to do so.

But now the picture has become much clearer. Barring the unlikely possibility that his colleagues on the bench are lying, Justice Prosser’s bullying has gone from offensively and aggressively verbal to physically assaultive. His inability to control his temper is threatening the work of the state’s highest court and making it something of a legal soap opera on a national stage.

The legal profession has enough problems with Type A folks who cannot control their aggressive natures. Do we really need a state supreme court justice serving as a reverse role model for the worst of these behaviors?

The Supreme Court and Wal-Mart: Does diversity (of the Justices, that is) matter?

Employers across America can rejoice and thank the U.S. Supreme Court for its decision handed down last week in Wal-Mart Stores Inc. v. Dukes, signaling the end of a huge class action lawsuit brought on behalf of female employees alleging systemic sex discrimination. As reported by Tony Mauro for the National Law Journal (link here):

The Supreme Court on Monday handed a sweeping victory to Wal-Mart, the nation’s largest employer, in the company’s decade-long effort to thwart a discrimination class action filed on behalf of more than 1 million female current and former workers. The ruling is likely to hobble other large employment class actions as well.

Commentary about the decision, pro and con, already is voluminous. For three useful roundups, check out Workplace Prof BlogLaw.com, and Ohio Employer’s Law Blog.

Diversity matters

Law professor Melissa Hart of the University of Colorado writes (link here):

The most striking and disturbing thing about the Supreme Court’s decision in Wal-Mart Stores Inc. v. Dukes is the hostility evinced by the five-justice majority toward efforts of working women to address systemic workplace discrimination.

I agree and ask why this is so. Here’s my partial hypothesis: Members of the Supreme Court comprise one of the most homogeneous groups of people on the planet in terms of socioeconomic status and overall work and life experience. It is entirely fair to suggest that these factors played some role, however unconscious, in the decision.

Last year, the ABA Journal (membership magazine of the American Bar Association) featured two studies documenting powerful correlations between the race and sex of judges and the results of federal employment discrimination claims.  As reported by Edward Adams (link here), the studies formed the focus of a program at a major ABA meeting:

A judge’s race or gender makes for a dramatic difference in the outcome of cases they hear—at least for cases in which race and gender allegedly play a role in the conduct of the parties, according to two recent studies.

Racial harassment claims and race of judges

In federal racial harassment cases one study…found that plaintiffs lost just 54 percent of the time when the judge handling the case was an African-American. Yet plaintiffs lost 81 percent of the time when the judge was Hispanic, 79 percent when the judge was white, and 67 percent of the time when the judge was Asian American.

Sexual harassment & sex discrimination claims and sex of judges

…A second study…looked at 556 federal appellate cases involving allegations of sexual harassment or sex discrimination in violation of Title VII of the Civil Rights Act of 1964. The finding: plaintiffs were at least twice as likely to win if a female judge was on the appellate panel.

The current composition of the Supreme Court

Justices signing on to the key portion of the majority decision included Chief Justice John Roberts and Associate Justices Samuel Alito, Jr., Anthony Kennedy, Antonin Scalia, and Clarence Thomas.

Those who dissented in this portion of the decision were Associate Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor.

Hmm, see any gender pattern there?

Okay, from a social science research perspective, a sample of nine judges voting in one case lacks statistical significance to support a hypothesis. But do take a look at the bios of the Justices and check out their educational backgrounds, work histories, and who appointed them. (And by the way, when the bios refer to “private practice,” they usually refer to working at large corporate law firms representing powerful business interests.)

It should be clear that these individuals do not represent a cross-section of the American experience. This is not to say that any individual Justice is “unqualified” or improperly “biased” simply because of a resume. Rather, if we believe the most famous words of Justice Oliver Wendell Holmes, Jr. — “The life of the law has not been logic; it has been experience” — then it’s obvious that the life experiences of the Justices have been fairly narrow ones.

***

Law review articles

Go here for the 2009 Washington University Law Review article on racial harassment claims and race of judges, by professors Pat Chew and Robert Kelley.

Go here for the 2005 Yale Law Journal article on sexual harassment & sex discrimination claims and sex of judges, by then-law student, now practicing attorney Jennifer Peresie.

Big Pharma’s influence over medical research

Those who engage in research pertinent to their expertise understand, or at least should understand, the importance of conducting that work in an intellectually honest manner. And in no other fields are the stakes in research more significant than medicine.

That’s why it’s worth taking a long look at medical writer Harriet Washington’s piece for The American Scholar (link here), exploring how “the $310 billion pharmaceutical industry quietly buys… the contents of medical journals and, all too often, the trajectory of medical research itself.”

For those who have been following the marketing and public relations practices of Big Pharma, much of this comes as no surprise. Nevertheless, Washington’s success is in pulling together a lot of details in one concise yet informative piece. A few teasers:

Medical journals are utterly dependent upon pharmaceutical advertising, which can provide between 97 and 99 percent of their advertising revenue.

***

Moreover, drugmakers sometimes agree to buy journal advertising only if it is accompanied by favorable editorial mentions of their products. …“Pharmaceutical firms also inform journals,” [former medical journal editor Richard] Smith observes, “that they are receptive to buying huge volumes of reprints that favor their wares: The profits for the journal can easily reach $100,000.”

***

Drugmakers have enticed or ensnared the very font of evidence-based medical knowledge—the peer-reviewed medical journal. Not content to turn these journals out to ply the streets for cash, the industry finds many ways to pervert the editorial content itself.

This perversion is such an open secret that in 2003 the British Medical Journal published a tongue-in-cheek essay instructing researchers in the fine art of “HARLOT—How to Achieve positive Results without actually Lying to Overcome the Truth.”

Implications

One does not have to be a complete antagonist toward traditional medicine to be alarmed at the implications. Personally, I believe that the best health care options during the coming decades will come from combinations of, and choices among, traditional and alternative approaches. These options include products made by pharmaceutical companies.

Thus, I’m not looking for us to put the pharmaceutical companies out of business. They produce drugs that can save lives.

But we should be alarmed at how these companies shape the very research that influences the profitability of their products. And we should be deeply concerned about the ethics of researchers who allow themselves to be co-opted in such a fashion.

Loyalty, “betrayal,” and workplace bullying: Does insider status matter?

Suppose an employee openly disagrees with a position taken by her boss. Does her status as an insider or outsider impact the likelihood of being bullied by the boss?

In other words, is a boss more likely to bully a “disloyal” subordinate who is part of his inner circle or favored group versus one who is not?

This question came up during sessions and informal discussions at the May “Work, Stress, and Health” conference in Orlando, and it has intrigued me since then.

The insider

It may seem counterintuitive to suggest that outsiders can be treated better than insiders. However, I believe that in this context, insider status can be a risk factor, especially if a boss has a “you’re either with me or against me” mentality.

For the insider, anything smacking of a more public challenge to the boss’s positions (e.g., openly disagreeing at a team meeting) can be downright dangerous. A dissenting opinion from a “trusted” member of the inner circle may been regarded as an act of disloyalty, even betrayal.

The outsider

The outsider, by contrast, may be expected to be more of a critic, or at least less of a team player. His opinions may be treated dismissively due to that very status, and the fact that he is taken less seriously may be the reason he is not actively targeted.

Nevertheless, as countless stories of bullying attest, it would be a huge mistake to assume that a dissenting outsider is free from retaliatory wrath. If, for example, that dissent poses a genuine threat to the boss, then all bets are off. After all, in a work setting beset by controlling and insecure leadership, no one is immune from abusive treatment.

Back to school: WBI University in July

Periodically people ask me how they can reorient their careers to get involved in anti-bullying work. Obviously general qualifications and experience play a big role in answering that question, but an important early step is doing the homework. For those interested, a growing body of educational programs and materials awaits them.

WBI U

At the advanced level is Workplace Bullying Institute University, a/k/a “WBI U,” an intensive, three-day, small-group training program led by Gary and Ruth Namie.

The Namies have been hosting WBI U sessions for several years, providing specialized training to individuals who want to learn more about how to prevent and respond to the destructive phenomenon of workplace bullying. They describe their program as a “unique, intensive experience that prepares professionals in mental health, law, management, human resources, coaching, unions, speaking & training with graduate-level instruction and materials.”

In July I’ll be heading out to Bellingham, Washington, where I’ll be joining Gary and Ruth Namie and several fellow learners for the next WBI U training session. I have a feeling I’ll be returning home with a brain stuffed full of ideas and information.

Building a personal knowledge base

As workplace bullying has entered the mainstream of American employment relations, I have become increasingly concerned over the factual assumptions and casual advice being shared in career guidance columns and news segments. Frankly, there’s a lot of bad — even dangerous — advice being tossed out by supposed experts.

Without question, there is room for legitimate differences of opinion concerning behaviors that are so varied and complex. But those opinions should be informed by the growing body of knowledge we have about workplace bullying and affected stakeholders.

That’s why I’m looking forward to participating in WBI U. I’ve been researching and writing about the legal implications of bullying at work for over a decade, and in the process I’ve learned a lot about these behaviors and employment relations in general. But I firmly believe that you can’t know too much.

Do-it-yourself U

WBI U involves a solid investment of time and money. Fortunately, there are other paths to obtaining advanced knowledge about workplace bullying, and many of the leading sources are within a modest price range. For a book list of suggested titles on workplace bullying and related topics, go here.

Among the possibilities, the Namies’ two books, The Bully at Work (rev. ed. 2009) (for targets of bullying) and The Bully-Free Workplace (2011) (for employers), are excellent (and affordable) starting places. If you absorb the lessons within, then you’ll be way ahead of the pack.

For those who want to dig deeper, I strongly recommend Stale Einarsen, Helge Hoel, Dieter Zapf & Cary L. Cooper, eds., Bullying and Harassment in the Workplace: Developments in Theory, Research, and Practice (2nd ed., 2011). Though pricey, it is an invaluable anthology of research and commentary by leading experts drawn from many nations.

Online, WBI’s own website provides a wealth of free material. The International Association on Workplace Bullying and Harassment is the main learned society for interested scholars and practitioners.

The humane way to fix Social Security

Certain online programs should have a built-in laugh track. Chief among these are the countless “retirement savings calculators” designed to help us determine if we’re saving and investing properly for retirement.

Go ahead. Google the term and then plug in your numbers. If you’re like most of us, the results may make you cry — or laugh madly. This includes many who are gainfully employed and have contributed regularly to a 401K or an IRA.

Bottom line: Many of America’s Baby Boomers (and those of generations to follow) are woefully unprepared for retirement. I’ve been beating this drum for some time — see links to posts below — so I shall not belabor the details.

Cutting Social Security

Although these challenges are well-known, the current mantra on Capitol Hill is that we should cut Social Security benefits by reducing payouts and raising the ages for individuals to be eligible to collect.

These measures are urged because the Social Security Administration has projected that by 2019 it will be “paying more in benefits than we collect in taxes,” and by 2041 it will have sufficient funds “to pay only about 78 cents for each dollar of scheduled benefits.”

However, as other policy analysts have noted, the projected funding gap can be addressed fairly and cleanly by raising the income cap on payroll taxes. Currently the top 6 percent of income earners pay FICA only on the first $106,800 of their income. By removing the cap, the Social Security fund will be able to pay full benefits for everyone and rebuild its surplus.

How about raising Social Security?

But even a fully funded Social Security system will not be sufficient to ease the coming pain, when countless aspiring retirees look at the cold reality of a modest monthly check and sparse retirement savings.

Amidst the clamor of calls for belt-tightening, labor lawyer Thomas Geoghegan — one of our most thoughtful social and political commentators to boot — proposes raising Social Security benefits in a recent New York Times op-ed piece (link here):

…I cringe when Democrats talk of “saving” Social Security. We should not “save” it but raise it. Right now Social Security pays out 39 percent of the average worker’s preretirement earnings. While jaws may drop inside the Beltway, we could raise that to 50 percent. We’d still be near the bottom of the league of the world’s richest countries — but at least it would be a basement with some food and air.

Geoghegan is enough of a wonk to spell out how to raise the extra money, including removing the payroll tax cap, accessing estate tax revenues, and other measures.

What’s at stake

But the main message we should be sounding is what prompted Geoghegan to write in the first place, that is, the importance of providing a decent public pension to the elderly.

In 2004, conservative economist and retirement investment guru Ben Stein wrote these words in a personal finance column (link here) that have stuck with me:

It is fine to have no money when you’re young. It is not fine to have no money when you’re old. It is even fun to be poor when you’re in college or right out of it. But to be retired and in your 70’s and not know how you are going to pay your bills – that is terrifying. In fact, it’s a grotesque nightmare.

What is life like if you are old, weak, tired, not in great health, lonely and have no money? You are miserable, and you are in fear and you are gaunt on the inside.

I may not agree with Stein on many things when it comes to politics, but there is a deep ring of truth to these words. We need to harness our better natures and find a way to tackle this challenge in a humane way. A solvent and responsibly generous Social Security system can be a big part of the solution.

***

Related posts:

The press discovers the coming Boomer retirement crisis

When Boomers retire (or try to): America’s coming train wreck

Is America’s Social Security system going broke?

%d bloggers like this: