I recently blogged about the idea of access to justice “Sullivan Principles”. As man will remember, the Sullivan Principles were a set of principles for corporations about dealing with the old apartheid regime in South Africa. While some criticized these as merely a way of providing cover for corporations to avoid responsibility for their continued engagement and practical support for the regime, they did help energize a new group to take at least some action against the horror of apartheid.
So, the idea is that corporations should endorse and follow, a set of principles in how they deal with access to justice issues. Behind the idea is the hope that many corporations want to be seen a corporate good citizens, and that such good citizenship includes access to justice citizenship. This belief would be supported by the spread of corporate pro bono, in which the legal departments of major corporations make significant pro bono commitments. It would also be supported by the ways that corporations in New York, in response to the exemplary leadership of Chief Judge Lippman, have supported access to justice initiatives such as additional funding for community-based legal aid.
Such Principles might include general statements such as a committement to support access to the courts for all, and support for adoption of procedural rules at the court and legislative level that would ensure that all were heard. It would also commit those adopting them to follow practices in their dealings with stockholders, employees, customers, suppliers, and the public that would ensure that factual and legal disputes dealing with legal issues were decided by decision-makers that were neutral and fully informed. That would mean not using their marketplace power to compel others to waive such rights.
Examples, some of which might be specified in the principles, would include not requiring mandatory arbitration, not opposing the use of class actions to ensure appropriate resolution of cases involving large numbers of cases, and not placing arbitrary or needlessly burdensome conditions upon resort to courts to achieve resolution of disputes. I am sure this is only the beginning of the list.
This is obviously not only about poor people, and not even also only about the middle class, it is often also about small business, who can be subject to mandatory arbitration clauses. (A 2002 law exempts auto dealers from the Federal Arbitration Act . There is not as yet a parallel auto purchasers exemption!)
At root, the idea is that many corporations only push such anti-access techniques because they feel competitive pressures to do so. If most of the market was avoiding such techniques, then those within corporations who might attempt to oppose them would have stronger arguments. Just because the Supreme Court says you can use such a technique does not mean you should, or even that it is in your long-term interest to do so.
The bar, of course, has a particular responsibility to encourage the raising by lawyers with their clients of the long term downside to the clients of a society in which people feel that their rights can not be vindicated because of corporate (or indeed any) manipulation of the rules of the system.
Also for discussion would be including in the principles support for adequate funding for access to justice institutions such as courts and community-based legal aid. However I would avoid this as the central thrust, because it would make it too easy to turn the idea into a self-interested campaign for funding, and allow corporations to look like good citizens, even through they were engaging in deeply anti-access actions under the radar.