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Is there a crisis in the legal profession for civil litigants challenging systemic discrimination and other corporate misconduct? While it may not have reached epidemic proportions, plaintiffs are facing greater challenges bringing civil rights and consumer cases because of procedural hurdles in the civil litigation system. The Federal Rules of Civil Procedure are neutral, and therefore the interpretation and application of those rules strikes us as fair. However, upon further examination, it becomes clear that procedural mechanisms can act as barriers to justice, as hurdles that deny due process if they are too high to clear.

This is the potential crisis that may be looming on the horizon. There are three areas in which this is taking place. First, claimants are facing a tougher time getting access to the federal courts because the criteria for a complaint to survive dismissal have become more difficult. It is harder to get your foot in the courthouse door. Second, plaintiffs who want to bring their case with others as a class action are finding this more challenging. Clearing this procedural hurdle is important because for many employees and consumers-with little resources and small claims-being able to act collectively is the only effective way of challenging systemic discrimination or companywide misconduct. There is strength in numbers. Third, more every-day Americans are being forced to have an arbitrator, rather than a judge, resolve their disputes through mandatory arbitration agreements in form contracts. Having access to a judge and the civil litigation process provides important procedural protections and features not available in arbitration. Therefore, it is important that parties entering agreements to arbitrate truly understand and consent to such arrangements. Each of these procedural hurdles presents an access to justice issue and alone would present a formidable challenge for plaintiffs. But the confluence of them threatens to make these procedural hurdles insurmountable; indeed, signals the beginning of a crisis in the legal profession.



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