Amendments: Civil Law

If I have a dispute with someone, or they with me, we should be able to go before a court of law and present our case. The case should be decided on the merits thereof, with no partiality in outcome based on race, belief, gender, or economic status. No matter who you are, no matter how much money you have, no matter who you have a problem with, you can go to court and have justice.

We all know that's not so. How do we fix it?

Let's start with cost of access, with court costs and fees of various kinds. How can we justify forcing someone to pay for access to what's supposed to be a universally accessible system of justice? Some people genuinely can't afford those fees! That's little different than a poll tax: "it's a fundamental right, now pay for it." And if the rich (of whom I'm admittedly one, by most standards) have to pay higher taxes so the poor have access to justice, I'm fine with that. That's part of having a civilization.

1) No fees shall be charged for access to the courts.

But court fees aren't the only thing making justice inaccessible to the poor. The cost of lawyers is also an issue. If the poor sue the rich, the rich may win simply by weight of lawyers. And if the rich sue the poor, the poor may settle to avoid legal costs. Neither of these is justice. The depth of one's pocketbook should not make you more (or less) likely to win in court.

One common solution proposed is "loser-pays". But that will just have the tendency to reduce suits by the poor, who can't afford to pay if they lose. Our goal isn't the reduce the number of lawsuits, it's to make a system of justice that works equally for everyone.

Instead, I propose looking at how real estate agents get paid. (There may be variations, obviously, but this is how I've seen things done.) When a house changes hands, 6% of the sale price goes to the agents involved. If there's one agent, they get all 6%. If there are two agents, they split it between them. This means that if one party has an agent, it costs the other party nothing to have one as well!

Imagine we did something similar with lawsuits. Say all legal fees for a case were put into one pot, and divided evenly among all parties to the suit. Now, every party has exactly as much money for legal representation as every other party. If Sony sues me, they pay for my representation. They can spend ten million dollars attacking me, but I get just as much to defend myself with. They no longer have an incentive to hit me with a huge hammer just to scare me into settling. Extortion lawsuits are now much harder.

Consider the other way around. Say I sue BP. If my suit has merit, they may want to defend themselves with ten million dollars of lawyerage. But in that case, I get that too. If my suit is frivolous, BP may choose to defend themselves with a much cheaper legal team, knowing it will also deprive me of resources. Either way, the playing field is leveled, and set at the level both parties "agree" is appropriate to the charge.

Of course, there are other side-effect situations that could come up. Say I have ten million dollars to defend myself from an extortion suit, but I manage to negotiate myself a cheaper deal, or get pro bono representation? I can't be allowed to keep that money, or now I have an incentive to file suits than I don't mean to win. The unused money has to go somewhere. I propose the most effective place is funding the legal system itself, perhaps in the form of pro bono representation, or public defenders. However, I'm not sure if this provides some incentive for the court to alter rulings in order to get more money. This could be a flaw; advice on this matter from a lawyer would be appreciated.

2) In all lawsuits, money contributed to legal representation shall be divided evenly among all parties. Money submitted for legal representation that goes unused by any party shall be used to fund attorneys for the public defense.
 
And how about binding arbitration clauses in contracts? These are everywhere, probably in half a dozen contracts you've signed. If, say, AT&T were to royally screw all its customers, it's perfectly legal for them to say in the contract that you can't sue them as a group, only as individuals. For all practical purposes, they would be saying you can't sue them at all; why would AT&T care if one person sued them for $15? But a million people doing it, that's much more of a problem. Class-action suits are in some cases the only disincentive towards bad behavior on the part of large companies. If I sign a contract, and the other guy breaks it, I should be able to sue them in open court. Period. It should not be possible for a person to be legally forbidden from access to the courts, even by their own decision.

3) All persons in the US shall have full access to the US justice system at all times, including class-action suits, regardless of prior contractual obligations. Any clause of a contract which denies either party access to a court of law for redress of grievance, is hereby invalid.