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.

6 responses

  1. Most of us who are bullied cannot afford the legal representation we need. Basically my lawyer just provided a buffer between me and my employers. He told me going in that he didn’t know much about employment law. There are not many lawyers out there in employment law that work for the little guy like us. They need to work for the agencies, companies and corporations. THEY have the deep pockets.

  2. Bullied by the boss then bullied by the system. If only there was a way to pool resources for targets to give them equal ground to stand on.

  3. I agree with both of the comments above. When I was insidiously and strategically bullied out of my lengthy and successful (until then) career, for the first several consultations I could not even get an “employment” attorney to explore my case. They would just say, “EEOC? If not, then it’s at will,” without even giving me a chance to present the facts — which included some illegal actions on the part of my former employers. Like Cheryll noted, it was obvious to me that “employment law” specialists, at least around here, are the ones on the other side, working FOR employers, not employees. I had to do pretty much all of the legwork myself (learn the details of the laws) until I found the great folks in the antiworkplace bullying movement who could verify what I was discovering.

    Now I am going through the same thing in attempting to find a divorce attorney for a divorce that I currently do not want precisely because I am now unemployed and ill from being bullied out of my career, and thus is it an extremely inopportune time (for me) to have to go through this ($$$$). My case is a very complex one that does not fit their cookie cutter, 50/50 approach. It is obvious that they absolutely do not get it at all (especially medical issues), or just are not that informed when it comes to details of the law, or just don’t want to spend the time. For instance, this week I mentioned “marital torts” at the end of costly initial consultation with a local attorney. This attorney looked me in the eyes and said that that concept was too new and “progressive” for this town. HUH? Then how was I, one who is certainly lacking in legal training, able to know about the concept? When I still had a career, I was well-trained to explore every possible solution to a problem. Apparently this is not how the legal profession operates.

    I experienced this same inept farce that we call the “justice system” in this country when dealing with an assault several yrs ago. It was surreal. I was treated horrifically. I dropped the case.

    You could say that dealing with the legal system has actually ADDED to my already severe PTSD.

    My personal experience on a professional level with any type of lawyer in the US thus far has been far from acceptable and reminds me very much of our medical system (something that I am very familiar with). Both are extremely broken and $$$, only $$$, talks. Plus, they cost a fortune for inept service. How do they get away with this???

    I’ll stop here, but I have a lot more to say on this subject.

    Thanks for this post, David. It is oh so very timely for me right now.

  4. Thanks everyone for your comments! They join together in highlighting the human impact of the problem and raise a vision for something better. How can we have a legal system where there are so many qualified but underemployed lawyers and so many people who need someone to help them?! When even the HMO approach for medicine seems more efficient and more accessible by comparison, we know we have problems.

  5. Thank you for your post, David – and for the links. I’m especially looking forward to reading your law review article.

    One of the ironies in all of this is never-ending campaign for “tort reform” – as if Goliath is a hapless victim who needs to be rescued from David!

    Our legal system is unwieldy, grindingly slow and both remote and inaccessible to those who need it the most.

    Thank you again.
    Debra

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