CLASS WARFARE: THE DISAPPEARANCE OF LOW-INCOME LITIGANTS FROM THE CIVIL DOCKET

• Published in: Emory law journal Vol. 65; no. 6; p. 1531
• Main Author: Gilles, Myriam
• Format: Journal Article
• Language: English
• Published: Atlanta Emory University, School of Law 01.01.2016
• Subjects: Class action lawsuits; Economic crisis; Employment; Judges & magistrates; Low income groups; Mortality; Poverty; Predatory lending; Recessions; Small claims courts
• ISSN: 0094-4076; 2163-324X

In recent years, much attention has been paid to the startling disparities in income and wealth in contemporary U.S. society. The enormous concentration of economic power in the top 1% is the culmination of decades of significant income and wealth gains for the top, combined with stagnant or decreasing growth for the majority-a trend that continues apace. The implications of this wealth gap reverberate across the socio-legal landscape, but nowhere is the gap more glaring than in the civil docket, where litigation-particularly class actions brought by or on behalf of low-income consumers and employees-is on the verge of disappearing. To be sure, the decline in class actions is only part of the larger story, as procedural and substantive constraints on legal access are visible everywhere-from problems of non-representation, to cuts in funding for legal aid and court administration, to heightened pleading standards, increasingly restrictive views of standing to sue, and the privatization of justice. But the thesis of this Essay is that the unavailability of class litigation is disproportionately more harmful to low-income groups than any other legal impairment, for a number of reasons. The first is sadly obvious: economically disadvantaged groups are more susceptible to abusive practices in the marketplace and the workplace, suffering disproportionate instances of predatory lending, consumer fraud, unfair wages, and discrimination. Without a mechanism for aggregating these low-value claims, the rights of low-income individuals would simply slip through the legal cracks, unvindicated. But, more brutally, recent studies show that, to a large and disturbing extent, the poor stay poor: when members of low-income groups suffer from group-based wrongdoing, they are likely to experience the same or similar wrongdoing again in the future. The failure to detect and deter bad actors who prey on the poor only promotes chronic exploitation and the perpetuation of intractable poverty. And again, class litigation is often the best or only means of bringing these claims. This Essay ends by examining an important by-product of the disappearance of low-income claimants from the civil docket: as contemporary judges see fewer civil cases brought by or on behalf of poor people, one might expect that they will grow further out of touch with and more ill-equipped to manage these claims; and as this reservoir of wisdom empties, judicial attitudes towards the poor may harden, growing disdainful and ungenerous. Accordingly, when judges are sporadically faced with the legal claims of low-income groups, it becomes harder to spot (or easier to ignore) patterns of exploitative, abusive conduct by corporate or governmental actors.