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Supreme Court Rulings Undermine Access to Court, Says Penn Law Professor

December 02, 2009

Recent rulings by the U.S. Supreme Court have circumvented the power of Congress and are undermining access to court and the constitutional right to trial by jury, a University of Pennsylvania Law School professor testified today (Dec. 2, 2009) before the Senate Judiciary Committee.

“I am concerned that the Court’s decisions in Twombly and Iqbal may contribute to the phenomenon of vanishing trials, the degradation of the Seventh Amendment right to jury trial, and the emasculation of private civil litigation as a means of enforcing public law” said Stephen B. Burbank, the David Berger Professor for the Administration of Justice at Penn Law.
The hearing focused on the question: “Has the Supreme Court Limited Americans’ Access to Courts?”  Burbank – who has been teaching and writing about federal practice and procedure, court rulemaking, judicial independence and the relations between the federal judiciary and Congress for 30 years – testified in favor of legislation to reassert Congressional authority over changes to the Federal Rules that govern plaintiffs’ access to civil courts.
“Fifty years ago between 11 percent and 12 percent of federal civil cases had a trial in open court,” Burbank testified. “In recent years between 1 percent and 2 percent of federal civil cases have terminated at or after trial. This is a staggering reduction in trials in less than half a century.”
In addition to suggesting that the recent Supreme Court decisions were likely to exacerbate that trend, Burbank argued that they were in any event illegitimate because the Court evaded the statutorily-mandated process for amending Federal Rules, under which proposed changes must be submitted to, and may be blocked by, Congress.
 “One can only wonder at the spectacle of justices who deride a ‘living Constitution’ enthusiastically embracing living Federal Rules,” Burbank said.
Access to civil courts is important to protect the broad range of non-criminal rights and obligations that citizens, including corporations, owe each other, in such matters as contracts, safety, health, privacy, property, employment and competition, Burbank said. 
“Ultimately, these decisions raise the question whether our society remains committed to private litigation as a means of securing compensation for injury and enforcing important social norms,” he concluded.