Class Actions and the Poor

[Excerpt] “Imagine that you are a legal aid lawyer in America whose services are funded by the Federal Legal Services Corporation (LSC). You interview a prospective client and learn that she was recently laid off from her job; she applied for and was denied Unemployment Insurance (UI) benefits by the state; and she is in a desperate financial situation. You accept the client’s case to determine whether she has a legal basis to challenge the denial of her UI claim. You research your client’s problem and form the opinion that the denial of her UI claim was based on a provision of state law that conflicts with a superior federal law. You also realize that thousands of other needy state residents are likely denied UI benefits each year for the same reason as your client and that the amount of UI financial assistance that they lose as a result may be in the millions of dollars. You discuss your research with your client and she desires to pursue litigation that will not only seek a judicial remedy for herself but also for the other state residents who face the same problem. The obvious judicial avenue for your client to pursue is a class action4 case against the state, but you cannot file such a case because a 1996 federal law prohibits you from participating in class actions. The purpose of this article is to examine the policy justifications for the 1996 federal law that prohibits lawyers and legal assistance organizations funded by LSC from initiating or participating in class action litigation. No other attorneys in America who engage in civil litigation are barred by law from representing their clients in class action cases. This article will consider whether this prohibition is justified for LSC-funded attorneys. It will also explore the consequences of the prohibition for low income persons and for American society. This examination of the policy justifications for the class action prohibition will be done in the context of a review of Pennington v. Doherty, a typical class action case filed on behalf of low-income persons.

The Poor as a Suspect Class Under the Equal Protection Clause: An Open Constitutional Question

Both judges and legal scholars assert that the United States Supreme Court has held that the poor are neither a quasi-suspect nor a suspect class under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. They further assert that this issue was decided by the Supreme Court in San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973). It is the thesis of this article that the Supreme Court has not yet decided whether the poor are a quasi-suspect or a suspect class under Equal Protection. In fact, the majority in San Antonio Independent School District v. Rodriquez found that the case involved no discrete discrimination against the poor. Whether the poor should constitute a quasi-suspect or suspect class under Equal Protection remains an open constitutional question

Why Do the Poor Not Have a Constitutional Right to File Civil Claims in Court Under Their First Amendment Right to Petition the Government for a Redress of Grievances?

Since 1963, the United States Supreme Court has recognized a constitutional right for American groups, organizations, and persons to pursue civil litigation under the First Amendment right to petition the government for redress of grievances. However, in three cases involving poor plaintiffs decided by the Supreme Court in the early 1970s—Boddie v. Connecticut,2 United States v. Kras,3 and Ortwein v. Schwab4—the Supreme Court rejected arguments that all persons have a constitutional right to access courts to pursue their civil legal claims.5 In the latter two cases, Kras and Ortwein, the Supreme Court concluded that poor persons were properly barred from accessing the courts when they were unable to pay court filing fees. The shocking lesson of this triumvirate of Supreme Court cases is that certain poor persons who cannot afford to pay court filing fees can be denied access to the Judicial Branch of government to seek resolution of their civil legal claims. But paying court filing fees, like paying government-imposed fees to vote, should not be a precondition to the exercise of a constitutional right. This Article asserts that these three cases should have recognized that the poor—like all other groups, organizations, and persons—have a First Amendment right to access the courts to seek redress of their grievances, even when they cannot afford to pay court filing fees. First, Part I of this Article identifies the important role that the Judicial Branch of government plays in the enforcement of the civil legal rights of Americans and traces the development of the First Amendment right to access the courts for this purpose. Part II summarizes typical civil court filing fees and explains how available fee-waiver processes are ineffective. Parts III and IV consider the triumvirate of Supreme Court cases involving poor plaintiffs and asserts that the Court should have considered their rights to access the courts under the First Amendment right to petition the government for redress of grievances. Finally, Part V analogizes to Supreme Court precedent involving the right to vote and asserts that the imposition of fees for pursuing civil litigation, like fees for voting, violates equal protection as an improper precondition to the exercise of a constitutional right

Law Schools Should Be about Justice Too

Millions of low and middle-income Americans face legal problems every day. Most cannot afford an attorney. What is remarkable about these legal problems is that they are ignored by legal educators. American law schools, the training ground for our lawyers, do not focus on the civil legal problems of low and middle income persons. American law students are taught to focus on the legal problems of persons or entities able to pay for legal services. Not only are the common legal problems of Americans not studied in our law schools, the maldistribution of legal services in the society is barely even acknowledged by legal educators. One consequence of the law schools\u27 inattention to the legal needs of a large majority of Americans is the low incidence of pro bono work by practicing attorneys. This article describes how American law schools fail to teach law students about the public service responsibilities of lawyers. It also explores ways legal educators can better prepare their students to perform these responsibilities in their legal careers