Under the wonderful headline, A Plan to Rank ‘Just’ Companies Aims to Close the Wealth Gap, Alexandra Stanley has a great article in today’s New York Times.
Like all the best ideas, this one is simple:
Paul Tudor Jones II, the hedge-fund billionaire, has a plan to reduce income inequality. He wants to rate companies on their probity, not their profits.
“The wealth gap, that’s the single most important issue in this country,” he said in September while unveiling Just Capital, a nonprofit organization that he created with Deepak Chopra, the spiritual self-help author and wellness entrepreneur who taught Mr. Jones how to meditate.
Just Capital will rank corporations on how well, or “justly,” they treat employees, society and the environment. The idea is to laud companies that offer better pay, happier workplaces and greater transparency — and perhaps shame others to follow suit.
Surely that would be a perfect way to move forward the idea of corporate access to justice good citizenship, discussed in this blog previously. As I said in that post:
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 that experts like Judith Resnick of Yale could add many more procedural and substantive examples of ways that corporations could change their behavior in the direction of access to justice and thus less inequality. See, e.g. Diffusing Disputes: The Public in the Private of Arbitration, the Private in Courts, and the Erasure of Rights, 124 Yale Law Journal 2804 (2015), link here.
In the paper, Resnick describes the combined effect of the decline of negotiated contracts and recent Supreme Court decisons as follows (from the abstract):
The result has been the mass production of arbitration clauses without a mass of arbitrations. Although hundreds of millions of consumers and employees are obliged to use arbitration as their remedy, almost none do so—rendering arbitration not a vindication but an unconstitutional evisceration of statutory and common law rights. The diffusion of disputes to a range of private, unknowable alternative adjudicators also violates the constitutional protections accorded to the public—endowed with the right to observe state-empowered decision makers as they impose binding outcomes on disputants. Closed processes preclude the public from assessing the qualities of what gains the force of law and debating what law ought to require. The cumulative effect of the Supreme Court’s jurisprudence on arbitration has been to produce an unconstitutional system that undermines both the legitimacy of arbitration and the functions of courts.
It hard to imagine that a corporation willing to take advantage of all this as a corporate good citizen. At the same time, those of us advocating court reform can urge that this kind of denial of rights of access is made easier to justify by the complexity and lack of accessibility of our current dispute resolution systems.
I hope experts will start to suggest more criteria for “just” companies, while reform advocates work on making the system accessible to those seeking justice.
The arbitration issue is even worse. See the from the NYT, http://www.nytimes.com/2015/12/23/business/dealbook/sued-over-old-debt-and-blocked-from-suing-back.html?hpw&rref=business&action=click&pgtype=Homepage&module=well-region®ion=bottom-well&WT.nav=bottom-well&_r=0