Judge Rakoff has published in The New York Review of Books a piece entitled Why You Won’t Get Your Day in Court, in which he describes several factors that have caused ordinary citizens to have less and less access to courts. He argues, for example, that the Supreme Court’s decision in AT&T v. Concepcion, which upheld mandatory arbitration clauses with class action waivers, treated the Seventh Amendment’s right to a jury trial like an “outmoded procedure that could be forfeited in the interest of saving time.”
Judge Rakoff also observed that delegation to administrative agencies contributes to the problem: “Without any obvious support from the Constitution, these agencies, which are branches of the executive, . . . create their own internal courts, with procedures that bear little resemblance to those found in the judiciary.”
The piece ends by suggesting that, while the problem is largely one for the legislative bodies to address, judges should endeavor to reduce these problems where they can:
This would require a considerable change of thought on the part of many judges. Indeed, it is hardly surprising that judges who often have substantial dockets tend to look favorably on arrangements that will lessen their work burden, whether by mandatory arbitration, denial of jurisdiction, reliance on prosecutors and administrators, or similar measures. Too often, however, such relief morphs into an effective reduction of judicial responsibility, with dire consequences for the long-term ability of the courts to serve as an effective check on the power of the legislature and the executive. Arguably even worse, the situation I’ve described reinforces the belief of citizens that the courts are not an institution to which they can turn for justice, but are simply a remote and expensive luxury reserved for the rich and powerful. If the judges themselves do not take steps to counter this insidious trend, who will?