. Lucky for us, both Reuters and Slate have already done some of the job for us. Just wish the headlines were better!
Here’s Slate: “.”
And here’s Reuters. “.” Let’s start there.
Three Reuters reporters just published a huge investigative report about where we are when it comes to the “routine use of protective orders, sealed documents and other tools of concealment [that have] wrapped U.S. courts in lethal secrecy.” To summarize, over the last few decades, “big business and its legal lieutenants succeeded in a focused, concerted campaign that has ensured that secrecy cloaks lawsuits alleging that their products can kill or injure people.”
The reporters describe how the corporate defense bar, with “ready support from judges and court staff,” transformed our open civil courts to one where the evidence of defective and dangerous products remain hidden as people continue to be killed and injured.
Yet it didn’t have to be that way. Yes, over the last few decades and even before, corporate defense lawyers have argued that disclosing health and safety information violated corporate privacy. But things got really bad after 1984. That's when U.S. Supreme Court Justice Lewis F. Powell Jr., longtime tobacco defense lawyer, wrote one line in a 1984 Supreme Court decision that became the legal foundation for the entire corporate movement to institutionalize secrecy. Notably Justice William Brennan asked him to leave out that line. He refused.
Then, “The defense bar’s leading trade group, the Defense Research Institute, published a 1987 guide citing the Supreme Court’s decision and urging corporate litigators to seek protective orders “even where defense counsel can make no special claim of confidentiality.” And judges went along with it, sealing evidence “relevant to public health and safety in dozens of the biggest defective-product cases consolidated in federal court over the past 20 years.” As a result,
Hundreds of thousands of people were killed or seriously injured by allegedly harmful products after judges in recent years allowed litigants to file under seal, beyond public view, evidence that could have alerted consumers and regulators to the dangers. The secrecy allowed drug makers to market painkillers as safe while the body count from the opioid-related epidemic mounted; auto makers to sell cars with lethally weak roofs that killed people in rollovers though tests had years earlier revealed the risk; gun maker Remington to knowingly sell rifles with bum triggers that killed scores of people.
Now for “The Decade Class Actions Were Gutted.” Most of this article is about the destruction of our rights due to widespread use of forced arbitration and class action waivers, and in particular, the damage done by the U.S. Supreme Court majority in upholding the validity of even the most unfair and egregious clauses. The court’s liberal wing, particularly RBG, has strongly dissented in these cases. We have covered this issue extensively. But here’s a perspective that we find new and important:
When progressives critique the Supreme Court, they rarely mention these cases. Many liberal advocacy groups embrace attorneys who advance progressive causes in their pro bono work, even if those attorneys turn around and undermine those causes in their day jobs.
One predictable result is that the liberal legal community focuses on objectives like reproductive rights and LGBTQ equality, which corporate America already supports. Consumer welfare and workers’ rights are put on the backburner, partly to avoid alienating superstar litigators—and deep-pocketed law firms that provide financial support to progressive [groups].…
Corporations have not been more powerful, or less accountable, since the Gilded Age. Class actions at least gave everyday Americans a fighting chance at justice when big business screwed them over. The Supreme Court has enabled rich companies to play by a different set of rules than the rest of us, picking winners—CEOs, bank executives, white-shoe law firms—and losers.
By the way, every law student reading this who wants to fight back should attend the next February in Washington, D.C. THAT is how things will get better!