tv Discussion Focuses on Access to the Courts CSPAN November 3, 2016 5:30pm-7:31pm EDT
>> moderator: we'll see what happens november 3th. all right -- november 8th. all right, stay with us, we'll be back with the round table. ♪ ♪ >> live now to georgetown university law center in washington, d.c. for a discussion shortly on a lawsuit by the city of miami against banks. the city alleges discriminatory lending, a violation of the fair housing act. we'll hear from a group of lawyers about what the case means for future access to the court system. the hosts of this discussion, the supreme court institute at georgetown university law center and the constitutional accountability center. the event should be getting under way shortly, live coverage
accountability center, a nonprofit public interest law firm, think tank and action center dedicated to the progressive promise of the united states constitution. cac is delighted to be hosting, co-hosting this event tonight with the supreme court institute and major thanks to dory bernstein, the institute's director. we have a great event here tonight to talk about the important question of the future of access to courts. as many of you know, while this room is a mock courtroom of the supreme court, when you stand outside, you see inscribed over the arch of the door "equal justice under law." but for many people, their search for that justice ends on the steps of the courthouse, because the courthouse doors have been closed to them through restrictive judicial doctrines. they don't get their day in court. they don't get to fight to vindicate their rights and fight against legal wrongs.
now, some people think that this winnowing function creates a more effective judiciary. certainly, the roberts court as it existed before the passing of justice scalia had a narrow view of judicial power and closed the courthouse doors to litigants who were seeking to hold corporations accountable, prevent harm to the environment, hold accountable police misconduct and stop the federal government's system of warrantless wiretapping to name just a few examples of cases that were thwarted by the roberts court in recent years. now, cac, my organization, has a different view, and we are releasing a piece of scholarship today that tells a different story focusing on how the constitution and its framers created an independent federal judiciary and chargeed it with the responsibility of enforcing the constitution's guarantees. giving the judicial branch in article iii broad power to
redress legal wrongs, to insure that for every legal right, there is a remedy for the violation of that right. this narrative that we are releasing entitled the keystone of the arch, the text and history of article iii and the constitution's promise of access to courts, is available outside the room tonight or on cac's web site, theu sconstitution.org. we have a fantastic group of experts, supreme court advocates and legal academic experts to walk us through these important issues, and they'll be presenting a diverse opinion, set of opinions on these issues, and we are very grateful to have them to talk about these issues as a legal matter and also to talk about the possible direction of the supreme court in a post-scalia era. assuming, of course, that the senate eventually decides to do its job and confirm someone to that vacant supreme court seat. now, to lead us in that
decision, i am delighted to introduce amanda frost, tonight's moderator. amanda is a professor of law at the american university washington college of law where she writes and teaches in the fields of constitutional law, federal courts and jurisdiction, immigration law and judicial ethics. she was also a litigator at public citizen for several years, so we are very grateful to have her expertise both as an academic anda litigator. so i'll turn it over to amanda frost. >> great. thank you, elizabeth. thank you, dory, and thanks to the supreme court institute and the constitutional accountability center. we're here today to discuss access to courts, and we're going to do so through the lens of two different events. one is the supreme court case, wells fargo v. city of miami, a case that concerns the question of whether the city of miami had standing to challenge the bank's alleged predatory lending practices in that city under the fair housing act. all five of the panelists today have authored amicus briefs on
that question, and so all have views that they'll be sharing with you all. and that case is going to be argued soon, tuesday, november 8th, a day on which not much else is happening, so thinking lots of newspaper coverage on november 9th? probably not. [laughter] but that's okay, we'll enlighten you about it here today. and we're also here to discuss access to courts more generally and to focus on the terrific new report authored by david gans, the keystone of the arch, the constitution's promise of access to courts. so we're going to start off by talking about the supreme court case, and then we're going to move on and talk more generally about these access to court issues. i'm going to give a brief introduction to our panelists. their bios are long, and they are very accomplished, but i will, in the interest of time, shorten them up. steven bradbury here is a litigation partner at deckert, he also served as principal assistant attorney general in the u.s. department of justice where he headed the office of legal counsel, and he
co-authored the brief on behalf of the cato institute on behalf of petitioner wells fargo and bank of america. david gans is director of the citizenship program at the constitutional accountability center. he co-authored a book on religious liberties and, of course, he also authored the report we're going to be discussing today. david is one of the authors of the brief on behalf of the constitutional accountability system on behalf of responsibility, city of miami. deepak gupta, is the founding principal of the gupta wesler law firm, he specializes in many different areas of law. he worked as senior litigation counsel at the consumer financial protection bureau, and he has co-authored a brief on behalf of the national association of counties, the national league of says, u.s. conversation of mayors and other municipal lawyers in support of responsibility, city of miami.
the naacp legal defense fund, and he also before that worked at the aclu's national prison project. he is one of the authors of the brief on in support of the city of miami. and jeffreywall is co-head of cromwell's litigation practice where he's argued cases in the supreme court and many appellate courts. he also worked in the office the solicitor general and has co-authored a brief on behalf of the chamber of commerce as amicus curiae in support of petitioner bank of america and wells fargo. so to begin, just for those who may not be familiar with the case, i've asked, first, steven bradbury to give a brief overview of the case and respondents' position, although the purpose is not so much to be an advocate, it's just to make sure everyone understands what that case is about, and then i've asked -- [inaudible] to fill in any gaps from the responsibilities' side, and then
we'll start -- the respondents' side, and then we'll start the discussion. >> thanks, amanda. so the case is wells fargo and bank of america v. city of miami. the respondent, city of mime, was the plaintiff -- city of miami, was the plaintiff, is the plaintiff in the case. and the city is bringing an alaska for damages under the -- an action for damages under the fair be housing act, title viii of the civil rights laws. and the city is claiming that the petitioners, the banks, engaged in discriminatory lending practices in issuing mortgages to individuals in miami, and miami can woiming oz to utah every-- alleged discriminatory lending practices, these mortgages were kind of set up to fail. there were lots of foreclosures as a result, and in turn as a result of foreclosures on these discriminatory to loans, the
city suffered in the form of reduced tax base, so reduced tax revenues to the city of miami and also the city argues that as a result of increased foreclosure rates, there was more urban blight in miami. and in order to combat the urban blight, the city of miami had to incur increased fiscal obligations, increased budgetary expenditures. so the city is suing these big banks claiming damages to compensate the city for lost tax revenues and increased fiscal obligations. essentially, seeking hundreds of millions, if not billions of dollars in the form of these fiscal and tax harms that the city claims that it suffered. the banks -- and, by the way, there are a number of suits like this that have been brought by cities and counties across the
country under a similar theory against different large financial institutions. the banks moved to dismiss claiming that the city had failed to state a claim under the fair housing act, that this wasn't the type of claim that congress intended to provide action for damages. the provision at issue says that any person aggrieved by a violation of the fair housing act can sue for damages for the harm that they suffer as a result. and the respondent -- the petitioners, the banks, say wait a minute, this isn't the type of claim, it's too remote, it's too attenuated, and claims for things like tax losses and fiscal obligations of the city are not the kinds of harm that congress intended to provide compensation for under the fair housing act. it's not closely related to actual instances of discrimination. the city ultimately prevailed in the 11th circuit below.
the court of appeals relied on some supreme court cases early on from some years ago that basically said the standing to bring one of these suits under the fair housing act is as broad as article iii standing. so anybody who can claim any kind of injury that's fairly traceable to an alleged violation could bring a suit. and so based on that, they allowed the case to go forward. the arguments in the supreme court now are based on some more recent decisions including two decisions authored by justice scalia, a decision called lexmark international and a decision called thompson. and under these decisions, the more contemporary court has made it clear -- and, by the way, these were unanimous decisions -- the contemporary court has made it clear that every cause of action created by congress in a statute like this cause of action for damages
under the fair housing act has itself a substantive standing requirement built into the cause of action in the statute that requires the plaintiff to plead that its claiming falls within -- claim falls within the zone of interest protected by the statute and to plead that there is probable cause that its injury was a direct, proximate result of the violation of the statute that's claimed. and so the issue before the court is whether those more recent decisions and those doctrines of zone of interest and probable cause requirements to bring a statutory cause of action preclude the kind of claim that city of miami is bringing here. >> great, thank you. and, ajmal, do you want to add to that or give a different perspective? >> that's an excellent summary, and i would say i probably agree with 99% of it. and i think i just want to add a
few points just in terms of framing at the larger context for this case. as steven mentioned, the heart of the actions add issue in this case have to do with predatory lending, and as ldf details in their brief, there's a long history of discrimination in terms of housing, housing discrimination against african-americans within the united states. and so i think for the city and, certainly, from ldf's perspective, this case comes within that larger or context -- larger context of housing discrimination against african-americans and the predatory lending that occurred in the leadup to and during the great recession beginning in 2007 really was an extension of this long history of predatory lending and housing discrimination. so that's the ultimate backdrop that i think is important to recognize beyond that excellent legal summary of the issues in the case.
the only things with regard to the actual legal summary that i would add is that this is a disparate impact case under the fair housing act. it's not -- that's really the heart of the issue before the court. as many of you know, last year the supreme court in texas v. icp affirmed disparate impact under the fair housing act. it's a tremendously important decision for civil rights lawyers across the country. the law students here and many others here know in 2001 the court in alexander v. sandoval said there was no private right of action under title vi, that's the public accommodations provision of the civil rights act. and while disparate impact still exists under title vii, the employment discrimination provision, disparate impact is a greatly endangered species or portion of the law. and so it was very exciting and important that the court last
year recognized that disparate impact continued to exist under the civil rights act. and so this line of cases not only builds upon this larger context of housing discrimination, it also builds upon the supreme court's decision last year recognizing disparate impact and seeks redress for violations of the law that have a disparate impact on african-americans and other communities of color within the united states. the final thing or the two final points i would add is that this case is unlike a lot of cases that come before the court in that it does not necessarily involve a circuit split. as many of you know, a circuit split is a situation in which there's a split between the circuits and how they've ruled as to how a particular piece of the law should be interpreted. this case does not involve a circuit split, it involves a series of decisions -- four decisions -- dating back to 1972.
staff p can today being the first and the one that's most frequently cited with how to do with the term aggrieved person is interpreted. so it is a deep concern to civil rights lawyers that the court did take up this case. and so i think that's the larger context i would add, but i think the legal summary that was provided was excellent, and i agree with it. >> so then my next question primarily for those who offered briefs on the respondent's side is -- and, ajmel, i know in particular your brief said it would be absurd to exclude miami from the definition of an i grieved person -- aggrieved person, but the petitioner's said every single person tangentially harmed by the predatory lending could sue, could the neighbors sue, could the local shop, the butcher, for example, sue because now there's fewer people coming to the shop because the predatory lending led to foreclosures leading to fewer people mt. neighborhood.
it does -- in the neighborhood. it does extend out, it would mean also the world, right? so is there any limit? what do you think? how do you respond to that critique? >> so there's two ways to think about that. the first is that -- actually, i'm going to say there's three ways to think about it. so as many of the law students in the room know, this is going to devolve pretty quickly into a line-drawing exercise which many of you know from your first-year classes is the thing that all law students love, line-drawing exercises of finding that precise line. ultimately, we don'ting have to in this case decide exactly where that line is. ultimately, we have to decide in this case specifically whether or not the plaintiffs or plaintiffs like the plaintiffs in this case ultimately have standing. so we don't need to ultimately resolve whether or not, you know, a lawnmower would be the type of person who, you know, no longer could mow lawns because no one was living in that house
would have a claim under the fair housing act. that's not the question before the court. the question before the court really is whether or not cities have are a claim under the fair housing act for the type of damages that steven so adequately described. and along that point, i think that there is something special about cities that make them different from a lawnmower, for example, or as the thompson court talked about, the central analogy that justice scalia relied upon in thompson had to do with a shareholder, whether or not a shareholder in a company could come forward and sue about an employment decision that a company had made. and i think that there's something more special about the relationship a city has between it and its residents than between a shareholder and its company. we all own a hundred stocks of apple here or there, that doesn't establish a special relationship between me and steve jobs when he was alive.
it just means that i have a football interest in the case. a financial interest in the case. i would argue the relationship of a city to its residents is much more basic. a city, you know, represents the interests of the people who live in its community. the city represents the african-american communities that make up the city. i think it's different to the extent that a shareholder or lawnmower is not. and finally, there's this question of getting back to the line-drawing point. as steven emphasized, there are multiple legal questions at issue in the case. first, there's the question of whether or not injury extends to the full extent of article iii. but even if it doesn't, which it did not in thompson which was a title vii case importantly, not a title viii case, even though the court found in thompson that the zone of interest tasked was applicable -- that is, you have the right to bring a claim if
your claim falls within the zone of interest of who the statute was originally intended to protect -- the court still found that the plaintiffs in thompson had a case. and so even though, even if the court rules on the first question of whether, that there is not a claim, aggrieved person doesn't extend to everybody who had an article iii injury, the city can still revail if it falls within the -- prevail if it falls within the zone of interest that was for protectedy the fair housing district. and i'm sure deepak can speak very adequately to the relationship of cities to the fair housing act. >> so i'd like now either steven or jeffrey to respond to that point, that the city is special and different and has a unique status and is, therefore, not opening the door to every possible, tangentially-harmed litigant even if they're allowed to go forward in this lawsuit. >> all right are. so i'll talk about it.
i mean, look, i -- the court of appeals mt. case held -- in the case held that you've got standing under the fair housing act up to the limits of article iii which is to say everybody that suffered an injury, in fact, which includes the butcher, the local shop owner, the handyman who used to do work at the foreclosed property and so on down line. i don't think anyone up here would dispute that all of those folks have suffered an injury in fact for article iii purposes. so the court granted the case, and i think ajmel and deepak and others have made sort of heroic efforts to say, look, among that class of everyone who has an injury in fact, cities are special. and the, you know, the brief that sullivan and cromwell filed for the chamber didn't focus on that in particular, so i don't want to speak to it in a lot of depth. i think what i'd say, and maybe steven and deepak can, will want
to talk about it is i think the city might be special for some purposes. for instance, various immunities or various doctrines in the law where cities and municipalities are special. but i think it's a little difficult to figure out why that should be true here. it's certainly not true from an injury perspective which is to say there are other9 in between the fore -- others in between the foreclosed property and the city as a causal matter who suffer an injury along the way because, keep in mind as steve laid out earlier, the causal chain here is that there were foreclosures. and be then that in turn both drove up the city services and forced the city to engage in extra social spending. and there are lots of other people who were sort of injured along the causal chain that led to what the city says were a diminished tax base and increased expenditures on its part. so it's sort of hard to figure
out why in terms of the causal chain you should think the city is special. and it's not, i think, true that there has been any lack of either private suits or government enforcement actions directly under the fair housing act. so as a matter of private damages, i think it's difficult to figure out why you would think that cities and municipalities could occupy a sort of privileged place. so i respect the efforts that the amicae have made to try to defend not what the court of appeals held, but a far more limited holding that would say you don't need to go so far, you can just talk about cities. but it's not clear to me what the sort of textual or historical basis is for that in the fair housing act. >> maybe i'll add a point or two and then, deepak, you can jump in. the city's claim here is vast and up differentiated in terms of the city's interest in the be alleged violations. and really the question you need
to ask, i think, is did congress in the fair housing act intend to give a cause of action to the electric company, the landlord, the shopkeepers in the area, all those people who may be economically impacted by increased foreclosures. and i think the plain answer would be, no. that that's beyond the scope of interest in remedying instances of discrimination, predatory or disparate impact, whatever the scope is of the substantive violation. here the claim by the city is far broader than that. it's essentially a claim for recoupment of lost tax revenues and budget shortfalls that the city has faced because of the cost implications of urban blight and increase forked foreclosure -- foreclosure rates.
was it really congress' purpose to enable cities to get back lost tax revenues, to fill their budget shortfalls through litigation under this civil rights law, was that the purpose of the law when it was enacted? i think it's pretty clear not, in my mind. i mean, there are plenty -- if these were instances of disparate impact lending in violation of the statute or discriminatory lending, predatory in some unlawful way, there would be plenty of plaintiffs well situated to seek redress for the harm to them from that sort of violation. rather than an overarching, all-encompassing claim for fiscal loss and lost tax revenues from huge municipality seeking a very general, undifferentiated way hundreds of millions of dollars in damages on this theory. the other aspect of it is the probable causation -- proximate
causation aspect of it. there are so many potential causative factors intervening in between these alleged instances of discriminatory lending or predatory to lending; the foreclosures, the foreclosure rates and the ultimate impact on tax base and on fiscal shortfall of the city from urban blight. there are so many potential causes of instances of urban blight that may impact the city's finances, etc. and in this case, the city's experts had super complicated economic regression analyses to try to identify that portion of the loss that's a attributable to the alleged lending practices. is that the kind of hyper-technical, overly complicated litigation strategy that congress intended under our civil rights laws?
i think it's a misuse of these statutes, and if you think about it in those terms, it's easy to see, i think, why it should be an easy case that these claims don't fall within the zone of interests and don't, don't satisfy the proximate causation requirement. and the last thing i'll say is if you look at the respondent's brief, city of miami's brief, on the merits, they argue zone of interest and proximate causation. it's -- the first question that ajmel described, they don't really seem to continue to argue for the full extent of article iii standing under the statute. >> okay. well, maybe, deepak, could you weigh in on on the question of are cities different? >> yeah. so steve said a lot that i disagree with, so that -- >> great. [laughter] that's my goal. >> i think this is one of the questions where the sort of technical legal questions don't
really tell you what the case is about. the technical legal question, the first question is this question, i think, is almost -- the answer is almosting trivial. you know, whether or not there's a zone of interest test. it's true that the older applying precedent said there's standing extending to the full extent of article iii, but that's just not what the court is going to say. so the real question is can cities, are cities the kind of plaintiffs that we want suing under the fair housing act. or, better, that congress wanted suing under the fair housing act. and then the second question, the proximate cause question, the question isn't really whether there's a proximate cause requirement, it's how the court is going to place some limit are on these kinds of cases, because i do think you look at the texas fair housing case, that was a really surprising decision to a lot of us because justice kennedy, essentially, i think, flipped his vote. remember that was the third time the issue was going to the court, civil rights advocates
kept on trying to prevent the case from going to the court. when it finally got to the court, justice kennedy joined the majority that -- [inaudible] would exist be, but set some limits because i think he's concerned about where it leads. and i think this case may have a similar pattern where the court is likely to say for reasons i won't explain now that absolutely, of course, congress intended cities can bring these kinds of lawsuits, but we're going to the place some limits, and proximate cause might be the place to do that. and the reason i'm so confident in this prediction is, first of all, if you look at the legislative history of the 1968 civil rights act that i think animated a lot of justice kennedy's thinking in the texas case, it was all about cities. i mean, cities were on fire. american cities were on fire. there were riots. and the law was not passed simply to address individual cases of discrimination or intentional discrimination; but, rather, this problem that in the
view of congress we were going to have two americas. that there was widespread residential segregation. so cities were at the heart of that. and then a decade goes by. in 1979 there's this case, gladstone, a village in illinois brings a lawsuit under the fair housing act, and it's eerily similar in some ways. the harm that they're claiming to what miami's claiming. i'll just read to you from the decision. they're claiming that they're injured because, quote: a significant reduction in property values directly injures a municipality birdie minishing its tax base, thus limiting the ability to provide services. that's a supreme court holding. and the court says that that injury, that claim by the city was sufficient to confer standing for the city under the fair housing act. so that's 1979. then another decade goes by, 1988 congress amends the fair housing act. and when it amends the fair housing act, it uses this word aggrieved, it establishes a
single mechanism for parties to sue under the fair housing act, and it defined aggrieved to adopt existing law and reaffirm the broad holding of gladstone. so why are we even here? the supreme court has already effectively decided this question, decided that cities can sue under the fair housing act and sue for these kinds of injury wheres. so i don't think that's a close question. i think unless the supreme court wants to overrule gladstone, wants to rule havens, which is even more out there, it's a nonprofit organization whose resources are drained as a result of housing discrimination can sue. i just, i think it's unlikely that after what happened in texas fair housing that that's where the court's going to go. i think the much tougher question is what kind of limits the court's going to place on these cases and what kind of line drawing the court is going to do. but the if you look at greatstone, this was just -- gladstone, this was just, you know, we're talking about access to justice and how things have
changed. you look at that case, the court calls it conclusory. it doesn't have much analysis or evidence other than what i just read you, and yet that was fine. whereas these complaints, as steve said, these -- the city of miami, baltimore had a similar case, they have he donic regression analysis that tries to isolate these variables. they're essentially proving their whole case just at the pleading stage. and so, you know, i think the court may want to place some limits on these cases, but the says have done a really terrific idea of isolating the variables. i think it might be hard. >> please respond. >> respond? i think what you just said, deepak, is intention with the notion that the court will place limits and will apply zone of interest and proximate causation and then the heavy reliance on the gladstone case. because gladstone case did not apply a zone of interest and proximate causation. the gladstone case was one of
the cases in the early line of cases some decades ago that said the standing to sue under these provisions is as broad as article iii. so it was an iii standing question. was there the minimum showing or allegation of injury and causation. the modern court's doctrine on article iii standing only requires that the injury be fairly traceable to the alleged violation. and not that it be the direct result. and i think the observation of justice powell in that case about the, how the village's harm to its tax base, etc., that it was claiming -- which may be an article iii injury -- in fact, was the direct result. that's a factual observation, i think, not a legal holding. and it can't really be a legal holding because it's not an element of article iii standing.
so i think the court has an open field here under its more current cases to draw the lines that we've all been talking about. i would also say in the gladstone case there were other plaintiffs. there were testers who were claiming violation -- the right to sue that the court recognized and also neighbors who lived in the same housing projects or same developments who sought the benefits of increased diversity, etc., who were held to have standing. and, of course, under article iii standing if only one of the plaintiffs in a group has standing, they all have standing. but not the case with this kind of statutory standing analysis. >> so -- >> could i -- >> yes. >> i mean, i think we have to recognize the ways in which the fair housing act is pre-distinctive. so robertson in king v. burwell says we have to respect a congressional plan.
i think this is, one, you have the text. any person who claims to have been injured by a gym that four -- discriminatory practice, we need to respect that. and the court's cases say pretty much that means what we said, we can knock off who's allowed to sue. it's not only direct victims of housing discrimination which are often the main plaintiffs when you're looking at other civil rights statutes. but you have a host of individuals and entities or who are indirectly injured by discrimination. that includes residents of the community both white and minority, that includes fair housing groups whose resources have to be put towards the goal of fighting housing discrimination, and that also includes cities. and i think the plan here kind of recognizes unlike perhaps the employment situation where you have the individual who's fired or aggrieved in some ways and has an impetus to go to court, in many cases in the housing situation, you know, you're searching for housing.
you may be a victim of discrimination, but you may not have the wherewithal to file your lawsuit while you're in the midst of a search for housing discrimination. and the law in this context recognizes we rely over and over again on indirect victims of discrimination to bring these suits. and that was the judgment of congress in 1968 in the wake of the assassination of dr. king and when the current commission talked about two americas. twenty years later when congress revisited this, they wanted to have more private enforcements. there were concerns raised by groups, oh, you're going to -- you need to cut back on the standing that has been affirmed by the court in this series of cases, and the court ratified it. and, you know, you can look at kennedy can's opinion in the -- kenty's opinion in the disparate impact. he pays close attention to the fact that the court looked at the decision that had come down, and those were just decisions of
lower courts. here we have a line of decisions delivered by the supreme court that congress very explicitly ratifies. now we think we can just sort of say, well, there may be other plaintiffs, that we can dismiss those. congress made a very considered decision, and i think the argument that, well, we can, we can sort of supplant that is, you know, violating the court's role which is to enforce what congress did. >> so what i'd like to do now is while not leaving this case completely at all, so we'll come back to it, but i'd like to widen the lens and talk about some of the issues that you raised in your report, and be i'll let you summarize some of the key findings. but to put it concisely, it's a report that says that the supreme court's gone off track, and it has prevented people from getting into court that the framers or founding fathers intended to be able to sue in order to keep the federal, state governments in line as well as preventing people to get in a court that congress wanted to be there. and so i guess i'd like you to, first, sort of summarize a
couple of the key points in the report for the audience members who want to know what's in it, but also i'd like you to then address why, why is the court choosing to narrow the role of itself and other lower courts? it seems like often times in separation of powers cases we have the problem of institutions aggrandizing their power. why has the supreme court consistently said, no, we don't have the power to hear and decide this? >> sure, so let me -- there are two related stories that the report flushes out, and i'll talk in detail. it's kind of a long report that is, tells a very long story, but let me try and be concise. when we look at article iii, it gives the federal courts really broad powers to enforce the constitution and maintain the supremacy of federal law in cases that before it. and we have to remember when we started with the articles of con fed bed ration which the frame -- confederation which the framers viewed as a train wreck, we had a single branch of
government. there was no way to go to court to enforce federal laws. and hamilton in the federalist papers complains the law's a dead letter without courts defining their true meaning and operation. ask one of the problems, the vices that madison talked about was states were lawless, and there was no way to check them. and the framers in philadelphia debated at length how are we going to check the states? should we use the executive? should we have a federal negative? that's what madison wanted. the answer kind of kept coming back to the judicial check provided by the court. so there are kind of three big article iii ideas that the report talks about. one this constitutional check. we, you know, the typical story we learn in law school is marbury v. madison, but you can kind of go a little bit earlier in time to john marshall in the virginia ratifying conventions where he says, you know, to what
point will you look for protection on an infringement of the constitution if you will not give to it the judiciary? there's no other body that can afford such a protection. and the key point is that the checking function that the court provides, that is the role of the courts in our system of separation of powers. second, and i think this links up to the miami case, the idea of what i call -- [inaudible] principles. three courts were critical to enforcing federal rights. that was the lesson of the disaster of the articles of confederation. and the idea was to create a judiciary that had co-extensive power to enforce federal laws with congress. so whatever rights congress could create, the federal courts could enforce. and this was discussed at great length both in philadelphia in the federalist papers, in the debate. and the frame beers viewed it that -- framers viewed it that that was a natural way of enforcing laws.
and beginning in the first or congress, the framers and their successors adopted a host of federal laws. they adopted some that we would associate with private rights. so you'd have the first copyright act passed, the first instance where congress allowed statutory damages which today are kind of sometimes a debate that we see, but they also created public actions investing individuals of the right to sue that in many ways are sort of the precursors of today's citizens under environmental laws that the supreme court is often looked quite skeptically towards. and the last point is this linkage between rights and remedies. for every legal right, there's a remedy. this was an idea that is kind of reaffirmed in numerous revolutionary state constitutions and is viewed in marbury and some of the very early, the famous marshall access to court cases is kind of a building block that underlies
article iii. and so i think this history is important because we've seen partly since the middle of the burger court a move to sharply restrict access to courts, so the question is why. some of it is a backlash, i think, to the warren court and trying to keep out of court some of the kinds of cases where the court had moved to the left. so i think the report talks about a very important case in the 1970s that made it harder to sue for exclusionary zoning. there's an extremely important case in the '80s called lyons where a victim of the chokehold isn't allowed to sue for inyoung tiff relief -- injunctive relief. and marshall said this basically means no one can sue. and i think we still see in the event of chokeholds is the court said we're not going to be
involved, we're not going to stop that kind of police abuse. so there's a thrust in the burger court to cut off enforcement of basic guarantee of equality by minorities and others. i think scalia is a big part of this story. he's incredibly influential on access to courts. he writes this very famous lecture in the mid '80s that i think influences the court, and then he joins the court and plays a huge role. justice scalia is very skeptical about, about citizen suits, and, you know, he's, he views these as sort of these are cases that are, shouldn't really be in the court system. these are are, these are really matters that should be for the executive branch.
and he writes, you know, sort of a very famous opinion that for the first time in history says a grant of suit that congress provided is unconstitutional or. and the criticism the report makes is, goes back to this idea that there's a co-extensive principle where congress creates a right to sue. the federal court should be allowed to enforce it. and and we have this history that the report also talks about of the kind of public actions that arebe the precursors of today's system -- [inaudible] so there's a vision of separation of powers, there's the hostility to some of the ways the warren court moved the law. the quality that i think explains some of the reaction and we see some of those same threads and some of the same kind of conversation that started with scalia was these early opinions kind of in sort of modern-day rulings.
the roberts court, again, or has had -- has had a number of cases that have limited scalia's campaign against suits, but there have also been cases that have continued that thread. you know, we have the clapper case, you know, which takes a very narrow view of standing and says, look, unless you can show that you knew, you know, with a certainty that you were going to be wiretapped, you know, unless you can show that, you're out of court. and even with snowden's disclosures which at that time actually were only a couple weeks away, it's not clear that that standard could have been met. and it disabled this kind of critical constitutional check. and, you know, the court talks about standing as a matter of separation of powers. and when they talk about it, they view it as keeping the courts out of the other branches of government. and there's some cases where that's a concern, but they've
missed what is the sort of positive case of the judicial role that the framers insisted on which was that courts were a check on branches of government when they trample on constitutional rights. >> all right. so thank you for that review. and, you know, in the report there's a discussion of standing and an 11th expansion, sovereign immunity generally. we also, of course, could talk about twombly, we could talk about the approach to these arbitration cases which deepak has litigate but, jeffrey, you said in an e-mail when we talk about access to courts, we should be careful to balance the costs of bringing cases to court, the social costs and the sort of benefits of not having everything go to court. and maybe that's partly what's at stake here. i wanted to see if you could expand on that interesting comment. >> yeah, look, i guess in some ways it's a little odd to talk about access to courts as if it were a crisis. i mean, litigation is blooming. it is alive and well.
the dockets of the federal courts are bursting and, if anything, the federal court system is squeezed to the seams at handling the amount of litigation that is at least on a lot of courts' dockets. so i think we can talk about whether decisions like clapper have limited plaintiffs in particular areas, but i think to say that the roberts court or the rehnquist court before that has sort of sharply curtailed the ability to come into court for a swath of police officers in various areas of the law just doesn't really capture the reality of the federal legal landscape. and i think too that as you say, amanda, i mean, the bank of america and the wells fargo cases are a pretty good example. i mean, access to courts is a social good, and in order to talk about how much of it you should have, i think you've got to talk about not in some hack crow sense, but in a more micro
sense within a particular statutory scheme, how many people already are suing? what incentives is that providing to deter unlawful behavior? and what do we trade off if we expand the set of plaintiffs who can come into court? i think deepak is absolutely right, it is a case about limits and it's, you know, do you take the petitioners' view that you should limit the number of suits to people who are really blaming a direct, race-based injury, or do you allow a larger set of people to sue. but through causation and other doctrines, you try to as an inclusive community put some limits on it. and i think he's right that the way the court comes out on that probably is going to be informed by a judgment about what these various trade-offs are and how many of these suits you want and what kind of suits you want. and it seems to me, that's the trade-off you have to make. there is a lurking social policy question in the fair housing act cases which is to say that the
more you increase the costs of doing business in these underserved communities, the more you'll deter large financial institutions from extending mortgages or other types of financial products to people who live and work in some of these underserved communities. and you can debate the extent to which you think allowing cities to seek these kinds of large damages will deer defer banks fm loaning in these communities or it won't. but that is a trade-off, and i think we have to talk about it when we sort of talk about access to the courts. i guess my question for david -- and it's an excellent report, it's obviously a substantial undertaking. it's a very valuable contribution to the debate. i encourage all of you to read it. i think the question that i came away with, and i really want to get david's thoughts on it. look, there are lots of dock tribes that keep you from getting your day in court. it's not just standing. political question doctrine,
absolute and qualified immunity, subject matter or and personal jurisdiction, abstention doctrines and all the rest. there are, you know, a list as long as my arm of doctrines that keep you from getting a federal court to make an authoritative determination in your particular case. and there's broad be agreement on many of those. justice ginsburg wrote the daimler decision restricting general jurisdiction. it was the liberal wing of the court that found a political dequestion. so, you know, in a lot of these cases it's not the conservatives narrowing access to the courts, and there's pretty broad agreement even a lot of the standing cases. spokeo, i think, was 7-2. lujan was 7-2. i think achens was 6-3. i think we can look at a case like clapper or mass very epa and look at a 5-4 decision, but it seems to me there's pretty broad agreement across the
ideological spectrum in a lot of these doctrines that do limit access to the courts for one reason or another. and i guess what it sort of left me wondering was whether we were painting too ideological a picture by not looking at sort of the whole context of thing. >> so let me -- [laughter] you said a lot and let me try and respond. i mean so, one, and the report makes this clear, you know, this is broad, but it's by no means unlimited. so the political question example is something that the framers, you know, talked about. there were debates, you know, at that time, and there was, you know, a very famous, you know -- again, we go back to john marshall, you know? in 1800 when he's, you know, he's been around a fire, he's been a chief justice, he's in congress, there's a huge debate over what's known as the robin's affair which involved
extradition, and there's an attempt to say, you know, the executive has kind of interfered with the infence of the courses. and be marshall kind of lays out, you know, a very sort of well -- convincing explanation that sort of talk abouts about there are limits. extradition is one where there isn't a case in the way that the constitution talks about a case. and that is something that our constitutional system leaves to the president, you know, the example of the -- [inaudible] that's, i think, baked into the framers' understanding. so again, this is a vision of broad access to courts, you know? obviously, limits on jurisdiction was also something that the framers and the early congresses attended to and has been kind of a principle that goes back. so the idea isn't, well, there can be no limits on jurisdiction
or anything. and that's sort of a caricature. and we have doctrines like abstention, but those aren't about house toking jurisdiction, those -- housing jurisdiction, those are about postponing. to that, and that, you know, when you have abstention, maybe a case goes to state court before it comes back to federal court. but at the end of the day, the court will, you know, will sort of return and wave to the case maybe when it's heard from the state court about the maning -- meaning of state law. in terms of, so, you know, the area of standing is enormous. there are areas where there's some degree of agreement. so you could think of taxpayer standing. generally, outside of the area of church-state cases where the court is also sharply divided, there's general agreement that it should be, that most
taxpayers suits won't get into court. you can look at, you can look at the kuno case that guns burg said, you know -- ginsburg said, you know, i agree with you here, but i part company with you on a long line of cases. there are some areas where there's some overlap, i think, on, you know, on the breadth of the power of congress to open up the courts to cases the court is sharply divided. lujan was 7-2, but some of that 7 didn't quite agree with scalia, and the court is kind of -- has kind of come back to it and has continued to split. and, you know, sp be oki -- spokio, they produced an opinion, but with eight justices, they weren't actually able to move law any further than the case had been. and i think, you know, those issues will continue to come back, and perhaps we will have a
nine-justice court who can weigh in and resolve them. it seemed like spokio was from the perspective of litigants a missed opportunity to settle the case. both sides said we won, which is a sign that -- [laughter] that the court hasn't really resolved that much. you know, so there may be some areas of agreement. i think we have a court that is still very sharply divided with conservatives trying to close the courthouse doors. and, again, you know, one of the big areas is not just when it comes to the constitution, but a whole host of statutory issues. there's arbitration which i know deepak would like to talk about, we have punitive rules, there are a whole host of areas where we have bivens which deepak may also want to talk about, because that's -- >> could we, could we stick to standing though for a minute? that's a pretty big -- >> well, yeah. the claim was that there was
general consensus, and my point is that this is an area the court has and continues to be ideological on. >> yeah. >> so i want to -- >> i think there are some sort of fundamental disagreements between jeff and i in terms of how we objected. .. >> the file a complaint much to the chagrin but is a very long and include several details.
the reality is not everybody has the time or the resources, or the manpower to do that type of work the preparation of the case. to pat us on the back, there's only so many use, and so many lawyers at the department of justice are at hud. the reality is just in terms of sheer numbers there's cases out there that we cannot take. we certainly work as hard as we possibly can but there are cases we cannot take. there are people who did not have the money or the resources to bring the type of case that l df in the aclu, and the doj bring. i think that is the larger context for the case. there are successful cases out there, but they would also believe there are tons of cases out there that we would like to bring and others should bring but cannot be brought because they just don't have the
resources to bring them. in a lot of those cases there are claims that don't have experts behind them. those are often the type of claims that are having the door shut on them. meritorious claims where there is a real wrong, there there is a real impact, and there is a real harm. simply in terms of resources, it is not as well plaid is a 90 page complaint. that is the first point i wanted to make to provide a larger context. second, i wanted to respond to something much of that jeff said earlier about successful cases alleging violations related to predatory lending. certainly am not going to deny there have been successful settlements with the government. the government has had some success with predatory lenders but there are limitations in
what the government doesn't terms of resources in the types of cases they take on. the work that the aclu does is complementary and not repetitive there's cases that the government just can take in terms of resources. we are in the community, were talking to the clients, were talking to community organizations, we are in their leaving and breathing and talking to the actual victims in these communities. there's something to be said about having their voice heard and having that be part of the litigation. i want to say that i think's unsuccessful predatory lenders accountable but for the most part private plaintiffs have not been successful. there's a variety of reasons why plaintiffs have not been successful, this goes to the larger, fundamental issues. the
supreme court's 2011 decision in 11 decision in walmart versus duke which is a class action -- the merits inquiry, the ultimate inquiry about whether not we prove every element we have to prove and whether or not a viable to exists, as as opposed to limited questions that are supposed to be asked at the certification is whether or not there is a common legal question. whether this is an efficient case to be resolved in a classification. but the walmart versus duke question talked about how substantively difficult it is to prove the disparate impact cases and how you have to do the analysis involved and experts involved to get your foot in the door to survive a 12 b6 which is the initial question that comes before the court. there's also basic procedural questions that harm a lot of plaintiffs. let me make it very concrete.
the reality is that for a lot of plaintiffs they don't know that they have been victims it through a predatory loan until after the statue of limitations has run. how to display out, how did you not know? the reality is there is a tight is a tight statue of limitations of two years. you have to bring your claim within two years of actually receiving the loan. the reality is for a lot of these individual homeowners they don't know that they have been a victim of predatory lending until their home is foreclosed upon or the blending interest-rate has set in. i that time it has been more than two years and their claim is already barred. the type of hurdles that exist for individuals who tried to seek relief under the housing fear act and that's why it's important the city is seeking relief because outside of these large government settlements there is not really been a lot of success by private plaintiffs. finally, i know we are getting into all of the heady issues of
standing and somewhere of the high court's professors very happy but in the spirit of justice scalia i want to go back in time a little bit. not to 1789, but to the early to thousands early 2000's when i was in law school. as every first-year law student does we read all of these torts cases. and i taught that myself later on. you argue whether a proximate cause exists, doesn't mean closer near, banana peel case, so on and so forth. at the end of the day there is a real of the day there is a real person behind each of these cases. that's what i was always cut inking about a law school. you hear about the little girl who has hit her intestines sucked out by a pool drain. it's the case that every first year loss cool student reads. while while there debating leg negligence, etc. the basic
elements of negligence, i think it about the fact that there is a little girl here. i think in the same way at the end of the day, the legal issues are very important. they have far-reaching consequences as we have talked about. at the end of the day we're talking about communities of color miami and all other communities of the country that have been victims. in their staggering statistics. by 2002 african americans were three times as likely to receive a high risk subprime loan than similarly white counterparts. these numbers are consistent across incomes. african-americans still were much more likely to have subprime loans than others. by 2008, 55% of african-american mortgage holders nationwide had high risk subprime loans compared to only 17% of white mortgage holders.
when all of this came crashing down the impact on african-americans, real people in real real communities across america, the impact was enormous. the financial consequences of the foreclosures were devastating. high risk subprime loans cost boroughs of color between $164 billion. you might be watching this insane a whiny liberal complaining about the harm to these individual people, but this this is a casework consequences really matter. not only because these are real people at the center of the case but the legal doctrine in the actual case has to do with consequences. the foundation of the bank's argument in this case is thompson. the essential question thompson was whether or not extending liability to the plaintiff in that case would lead to an absurd practical consequence.
the point that i might colleagues at lgf make is that there's an absurd consequence to be made in this particular case as well. it's these people being victims and not been able to seek relief. >> i would like stephen to respond to that in particular to the point that cities are really the only or best place to sue because of private individuals find it difficult. at the end of the brief that your co-author in you said it was a problem to have cities team up together with plaintiffs lawyers and suggested that was a problem. i think you cited the tobacco litigation where plaintiff lawyers in cities, and states successfully sued the tobacco industry. some people think it was a good thing. i want to address this question about what is wrong with cities being the drivers of this litigation when it's difficult for private plaintiffs? >> the concern we raised in our brief about this kind of suit is that the city is circumventing the political process in seeking
essentially tax revenues in fiscal compensation through litigation, rather than having to face the voters of the city and raise taxes or make the difficult decisions to cut the budget. so simple point and turns of good governance and accountability for political units like municipalities. better to pursue government goals to the governmental process, the representative process, the electoral process, rather than through litigation in court for damages. i will say will say couple of things if i could. both in response to others in their report. i actually think the fundamental point of standing is to ensure that there is a real person with a real legal harm and interest at stake. the reason that's important and
this is no new latter-day doctrine. the reason it's always been important is because we want to ensure there is a concrete case that actually tees up the issue in a way that is appropriate for a court to decide in the guise of resolving a dispute the court is making very important to determinations about what the law means, what the law requires. we don't let courts sit like a start chamber of wise men and women deciding in their own view what they think the wash and mean and an abstract pronouncement. we only only let the courts engage and exercise the awesome huge power they have been under our system the last and final interpreter of what the law means when there is a concrete particular dispute. it has to be tee up in a way that makes it legitimate for the
court to exercise its function. that has always been true. that comes to us from the common law and the courts of equity. there has always been procedural requirements, used to be extremely elaborate before an individual could engage in a court and get a court to make a pronouncement. that pronouncement. that is been true for the history of the federal courts. i don't believe the report that dave is summarized with accurate in describing this as a latter-day essentially conspiracy of the conservative members of the court to usurp the article three function. if you go back to marbury versus madison, the main holding of the case we remember is the judiciary act was unconstitutional to the extent it created a cause of action they you could proceed directly in supreme court to get an inch
injunction against the federal officer. chief justice marshall said that was unconstitutional. but he did he did not get to that decision until he first walked through in great detail why he concluded that marbury had standing. marbury had a legal right to his commission as a justice of the peace because it had been signed as the outgoing president. he had a legal right to get an injunction against the secretary of state, medicine to force medicine to give it to him because it was a mere ministerial act to once the president had signed the commission and put it on the table for the secretary of state. the the state had no judgment not to deliver it. therefore marbury had a legal claim, he he had a right to get into court. it was only then that chief justice marshall reached the hugely constant controversial constitutional issue under which the law he was serving was constitutional. password to the new deal era.
justice frankfurter in all of the roosevelt appointees to the court, frankfurter, roberts, black, they all agreed in a separate opinion in coleman versus miller that there was a standing requirement that was tied to the text of the constitution. you had to have a particular rise harm, a uniquely appropriate plaintiff and you could get that harm redressed to the courts. justice scalia has made a great constitution to the contemporary jurisprudence on this by making it very clear, specific, concrete what the steps and elements of the standing requirement are. you have to have a concrete in particular his injury you show. you have to show it's traceable to the violation you are alleging.
you have to show the claim you're bringing, if you went would redress that injury that you're claiming. these are objectives, clear, consistent factors clear, consistent factors that the matter in court applies. they replace what has been i had of on certain and vague doctrines that the court has applied in years past like the political question doctrine and reasons for not reaching cases or decisions in certain cases. this is going to live on after justice scalia. i think the modern court will continue to embrace these clear objective requirements for standing. the standing doctrine is an equal opportunity filter. it is without regard to who is the plaintiff, what is the claim. it doesn't matter if you like this particular plaintiff or not. if you want his or her claim to succeed the same objective factors apply.
that is hugely important. the power power the court exercises when it does take cases is vast. just think of the over fell ogre but fell case -- vast power the courthouse. similarly in the obama care case, five members of the court held that it was not supported by the interstate commerce power of commerce though it was supported as attacks. huge power that the court exercises in many cases today when it does have a proper plaintiff before the court. think of what the court could do if it didn't apply a standing doctrine. think of all the federal claims
and arguments that we can all think of to make, to challenge federal actions. if any of us could get into court because we wanted to vindicate that abstract interest. this again it was an equal opportunity offender in terms of what you might think was a good case or not. one of us could get into court to force director call me to keep -- to indict hillary clinton for an alleged violation of law. think about, and i think jeff for raising this example in and going to steal it from you, donald trump's birth her claim. the birth her allegation about president obama. if there wasn't a standing doctrine potentially one of us could get into court to try to get a declaration from the court that the president is not a legitimate president. anybody can come up with endless kinds of examples.
the problem is if you have the best power that the court can exercise as the court of last resort what it does properly take a case and you eliminate the standing doctrines that limits the cases in which the court will take, then all all bets are off and the legitimacy of our articles three judicial system is going to be totally undermined. the people of the country will not allow the court to make pronouncements in that way in cases where the legitimacy of the exercise of the judicial power cannot be defended. i think all members of the court today recognize that and accept these clear, consistent factors for when the court can't properly take a case. >> i think there's a lot there
and i hope you will respond to a but also give the panelists some notice that after the response i would like everyone to give a minute or two of where you think the court will go in the future of part of this turns on everything that's happening on november 8. so, keep in mind your fairly brief answers to that question. >> let's take stop stock of all these things were talking about our. there always that judges have made up to kick people out of court that have nothing to do with the merits of their claim. whether they they are right or wrong. there ways that you lose even before you get to make your case. i cannot disagree more with what stephen just set about standing. we're taking two words in the u.s. constitution cases and controversies and we have created an elaborate framework that i think is anything but clear and consistent and objective. the proof is the recent case, the spokeo case which is a fascinating case. it is a case about who gets to
define what constitutes an injury. if we think of serving the separation of powers rule it's a kooky case. in a situation where congress had said you have a causative action, we think it's an important right you should get into court, these kind of people should be in court and have these, statutory damages. the court is then, or was poised to before they sort of punted and didn't decide the question after justice scalia died, was poised to insert itself into the question. i think it's a basic philosophical question that courts are not capable of deciding which is, what does society regard as an injury? what an injury? what we regard as harm? you think about privacy, certain environmental harms, these are things we trust the political
branches to decide. i think that's that's why it was a hard case why the court had to give it a couple of tries. the first time they took the question they fail to decide any case called first american financial versus edwards. then you had a decision where the supreme court is pretending to issue an opinion but as someone said earlier both sides think they want. what that did was mask the deep ideological divisions in this court. now that justice cooley is gone, think the court is evenly split on this. it shows you how much is at stake here. it's two very different competing visions about what the courts are for and whether the supreme court is fundamentally opposed to litigation the notion that litigation can sell problems. i think i would be remiss if i did not mention what i think is the issue that we have not touched on much but what i think
is what the court has done that's the biggest threat which is what the court has done on arbitration. i think if we talk about the walmart decision and standing, think what the court has done on arbitration it pales in comparison. with the court has done is taken and dusted off a law from the 1920s that was supposed to allow people to resolve their disputes in a different form outside of court. it has turned it into a device or just killing claims. not just any claims, think all of us in this room think that congress passes the law decides whether we have certain claims. even if we don't plan on suing anyone, i don't plan on suing my phone or cable company but i like the idea that congress gets to pass laws and regulates people in the marketplace. some some people are incentivized to bring those claims. the litigation system has a regulatory effect and there some
deterrence. what the court has done is allow companies in the fine print of contracts that nobody reads and nobody can negotiate to insert clauses that are basically an exit clause from the civil justice system. so that if you imagine a worker worker that is ripping its workers off of the minimum wage, imagine an employer that's paying women less than men across the board or pay an african-american's less white people, those claims cannot be vindicated except to aggregate litigation and with proof where somebody is incentivized to come forward and bring the claims. two decisions written by justice scalia, at&t -- and full disclosure i was on the losing end on both of those 5 - for decision. the effect of those decisions is that corporations get to basically write private legislation. when you sign your itunes
contract, nobody nobody signs or knows it what's in there that's private legislation that trumps the legislation by congress. that's the basic democratic problem. i think all say what i think is going to happen next for my response to the next question. i think it's an issue and i'm really looking forward to seeing action on in the new court. >> let's get some thoughts on where the court might go next. >> i think this is not going to be as chattering by any means and probably will be echoed by at least some of my colleagues, like all former law school professors it depends. as is already been alluded to once, there is an open vacancy on the court an election has to happen in those two things will likely have some effect on the court. think we can can all agree on that much. fundamentally for me it comes
down to this, it depends on the experience of the individual who is appointed to be the next justice. not only the life experience of the individual who is been appointed to be the next justice, also their experience as a lawyer. why do i say that? is a lot of these terms that we have thrown around today like pleasantville plausibility when were talking about emotions dismissed or all of these other vague terms of art that lawyers deal with on a day-to-day basis, to people outside of this room and outside of this law school they don't mean a lot. the reality is, as many of us know from our practices even within an individual attorneys team, different attorneys may have different understandings of those terms. judges, by their nature are interpreting vague terms that
they have their own individual understandings of. so your life experience is going to have an effect on what you view to be a possible outcome. your life experiences going to impact which you believe is an absurd consequence. certainly your life experience as an attorney is going to impact the way you view these issues. of course i litigate class-action every day and have been doing so for a number of years. i've been on the winning side and bet on the losing side of several class actions at the classification stage. unless you practical experience and actually litigating those issues and practical experience with the arguments that courts have accepted at the classification stage their arguments that have been rejected, you're not really going to have an understanding
of how these things actually play out. i think what i would emphasize is that it's important that whoever is appointed to the court, conservative, root liberal, democrat, republican, or whatever, is someone who is actually litigating these issues. someone who has lived the life experience of being on the end of being a victim of the things that these cases are about. that's going to give up her phone impact and insight into the way that individual rules. i think we've seen that to some extent with just a, and her criminal law and jurisprudence were seen the impact of somebody who actually was a prosecutor or da. the biggest feeling is that we have too many judges who fit one particular mode which a lot of us on this panel fit which is we
do fairly well in law school and then went to appellate judges and the one on to talk about these issues from an appellate sensor people who are law professors. i think it's important that the person actually have real life experience, not only as a litigator but also experientially being on the end of one of these. >> will have a few minutes left so i'd like to get other voices us were there court might be going. >> i'll be brief, they say look let's keep in mind what were talking about, these are made up limits by judges and keeping people from getting into court. i don't think any current member of the court believes that. when the plaintiff dies your case gets dismissed and thus called mootness. they say due process calls for limits on jurisdiction, you can be hauled into court on the other side of the country if you don't have a sufficient number of contacts in the state.
the political question keeps courts from deciding certain things. i don't think any member thanks those are made up her lack historical pedigree. i think what you're talking about is really the standing is made up in some way or an invention of modern -- thanks steve points out there's good reasons to question that, whether you think it's right or not amanda asked where we going, the court cares about precedent. i don't think any time soon you're gonna can find that the court is going to scrap injury in fact or traceability and redressability as parts of modern standing doctrine. what you may find depending on the election and who enters the court as they may not expand those doctrines in certain ways or a novel context like in cases like spokeo in order to deny plaintiffs access to court. i think the standing contacts may be a boring one.
the interesting panelists, what ends up happening with all the other issues people race. how do how do you interpret the federal -- act? those things i think you could see significant moves depending on who the ninth justices. i don't think we'll be sitting sitting here in ten or 15 years talking about the rollback of standing in the way that has torn open doors. one thing you haven't seen over time david's contribution is very valuable one, is is a real historical analysis of standing. he saw for the first time he saw justice thomas start to delve into a and maybe i'm that naïve one in the room, but just to end on my don't assume this is an ideological story, justice thomas indicates that for him there might be a difference whether you're forcing a private writer public right and standing might be broader for standard than public rights. you might see someone like
justice thomas who doesn't come from the kind of background you talk about, dig into the history and maybe start to make a case, one way or the other for what standing should look like in a way that the other justice hasn't. i think that would be an interesting debate to play out at the court. we'll see. i would not assume it will follow a conservative liberal narrative. >> can i agree with pretty much everything you said. when i say it's all made up i don't -- you can stop there a few on. >> all law is made up, we we make it up as we go along. i think your larger early right and so the big changes just going to be the duty's aggressive grants that are seeking to push the envelope in different areas. i think think in arbitration might be different. not because there's not a big
role to play there, after all of the statute and contracts are made in reliance on it. i don't think the court is going to do a 180. there's an interesting interbranch dialogue going on with the obama administration has been quietly promulgating regulations across consumer protection, nursing homes, student loans. these rules are going out and being challenged. there is a hearing to mississippi today, rule struck down in texas last week. i think all of the cases will start heading up to the court. there's already court. there's already a set of cases from the national labor relations board and whether keeping employees out from class actions is an unfair labor practice. that seems like the obvious vehicle for cutting back without overruling the decision. >> one thing i'm actually capable of doing usually is ending on time. we're going to end now.
york's 22nd congressional district in a debate between a debate between republican claudia tenney and democrat kim myers running for an open new york seat. at 9:00 p.m. p.m. the texas 23rd district, rematch with first-term and covenant will heard facing pete, the man he beat two years ago. a primarily hispanic district is in southwest texas. at ten p.m., and i was first district i was first district another first-term republican rod blonde debates monica verna. the district includes includes cedar rapids and to be. >> election night on c-span, watch the results and be part of a national conversation about the outcome, the location of the headquarters and watch a victory and concessions in key senate races starting live at 8:00 p.m. eastern and throughout the following hours. watch live on demand and c-span.org or listen
to our live coverage using the free c-span radio app. >> implored his 26 in congressional district former -- debate about hillary clinton and donald trump. congressman on unseated mr. garcia in 2012. >> our focus today's most hotly contested congressional race on the ballot and the candidates are with us to debate. were talking talking about the race for congress in the 2006 congressional district that is west chester to key west. a big chunk of south florida. about 800,000 people and it includes everglades national park. representative carlos cabela represents this district, republican finishing his first term in office and running for another one. joe garcia represents this
district in congress from 2012 through 2014, running out to take that seat back, he is a democrat. welcome. it's good to a democrat. welcome. it's good to have you in. let's go through the ground rules for very quickly. you will each have a minute to respond, 30 seconds to rebut. if one of you should make a disparaging comment or something you feel needs a response you will have the opportunity to do so. congressman we will begin with you, so to get this out of the way. you said months ago that you did not support donald trump. you still hold that position, you are not going to vote for them? >> that's right. i took a principal stand a long time ago, not because i was a politically expedient but it's what i believed it's what i believed in my heart. like many americans this campaign, for president it has been very disappointing. a lot of people are turned off and a lot of people in my generation, younger voters do not even want to vote. i'm telling people, go out and
vote, and expression on the ballot is worse is worthwhile. i'm not supporting either of the candidates, i don't think either deserves a cheerleader, i think both whoever wins needs to be held accountable. that's my commitment to my community. >> what you write in the name of someone? >> that something me and my wife will decide when we sit down to vote. we have our ballots at home, we have an open them but we will. that's a decision will but we will. that the decision will make and that's a personal decision. i respect all people out there, you clinton supporters and trump supporters, you have a lot of people who don't like either of them. everyone has to make the best decision for themselves and their family. >> thank you. mr. garcia, garcia, you are a strong hillary clinton supporter at a rally last week. she gave you a shout out out last week. is there anything about secretary clinton that gives you pause? >> thank you for having us and
think it carless for for being here. it's a pleasure to be here. it is great that we are discussing ideas because that's what's important. that's what this is about. when you listen to secretary clinton, she lays out an agenda that make sense for the country. she stood in the square of american public policy for the last three decades. it's a record of accomplishment within the norm. the day after the election, if someone else wins one of the other candidates year it would be a frightening day. that's be a frightening day. that's why think it's important to support here. i was an early supporter to her campaign because i believe she has a record of accomplishment, record of being in american politics and i'm glad to call her friend. >> let's begin with some serious issues which we know from polling matter to the people who live in this district. the first one is the economy. unemployment is considerably down in poverty, in fact few people are living in poverty, more, more people are insured and yet there is a sense of
unease in this country and in the district. what would you do mr. garcia to boost the economy in the 26 district? >> i think it's important to invest in the district and invest in americans. what we have seen by the republican congress which mr. curbelo as a leader, they're not willing to invest in our cities, and infrastructure. those are jobs that create a difference. they move our kids out of poverty and move us forward in our economy. i'm a great believer that the agenda that we lay out is when they make the difference for the country. it's investing 280,000,000,000 in infrastructure. it's what i did in congress, right 200,000,000 dollars for everglades restoration. millions $200 million for everglades restoration. millions of dollars for water purity projects in the keys. bring technical assistance of voting to expand or reduce
interest rates on student loans and expand pell grants. those are essential to him of the country forward. we knew congress that does it. >> congressman, hold on a minute. i have to say that last week we saw the budget figures for the fiscal year just ended. congress ended $587 billion in the red. 15 cents of every dollar that the government spends is borrowed. talk about infrastructure and student loans, where's this money going to come from? >> first wallet comes from reforming the tax system. you have to tax system. you have to take it on. when folks like mr. curbelo and the republican leadership vote against taxing the very rich and vote against and vote and interest of the whoppers that we are beastly don't take in the revenue. there is a huge difference between deficit spending and investing in the country. when you increase the value of the country you diminish the deficit as a total percentage of the budget. we see nonetheless to your. >> okay, let me is the congressman to jump in and respond to what mr. garcia said. >> i don't have to tell you what i think. i'll tell you what i've
done. i've worked i've worked with republicans and democrats in congress on two major issues that are very import for economy in south florida. you are right, we have had a recovery but there still a great sense of economic insecurity out there. one of the big reasons is half of the people graduated from college is today with a four-year degree get jobs in places that don't require a college degree. so these poor kids that get into debt, that, that spent four years in college, then graduate and guess what, they are working maybe a restaurant, which is fine except for the fact that that's not why they would college. >> they're not going to pay their student debt off quickly, either. >> here's what we have done working together, and my committee, we passed career technical education bill that promotes different pathways to success. what is one of the big challenges in the country that
we trapper kids in a system that is not necessarily for them. we tell kids, every kid in school we say you have to get a four-year degree. guess what? a lot of kids don't want to four-year degree. they want to take different pathways to success. they want want to get into careers that require vocational training. that is honorable work. we are setting those kids up for success. that's a powerful message. one more which is critical to our economy in south florida, trade. a lot of great jobs at miami international airport. a lot of great jobs at the seaport in different parts of south florida. we worked with the white house when the most radical elements of the democratic party wanted to deny president obama the authority to go out and negotiate trade deals with our allies. we worked in congress to make sure he got that authority. that can lead to more wonderful, good quality jobs in south
florida. >> it do you support tpp, the trans-pacific partnership? >> has a per the concept. anybody who lives in south florida and against free trade, this is one of my frustrations with the presidential candidates, they're both the against free trade. we have so many good quality jobs, small as this is that depend on free trade in this area. do the deals need to be negotiated in a responsible way that protect american workers? absolutely. to be against trade of south florida it is to be against jobs in south florida? >> i'm a believer and fair trade, not not free trade. we have told people accountable. all of these deals have very strong provisions. we have to hold them accountable, whether as labor standards, environmental standards, environmental standards. when you're competing against nothing on the other side it to diminishes wages. i'm a big believer in moving forward on investment in the country because that is here. those are jobs that we move forward. that's why education is so important. when carlos talks about being for the tpp, i understand understand the concepts and the
trade concept, but the truth is we are bracing to the bottom which is what what happened with these trade bill. >> what about renegotiating nafta? we've heard a lot of that during the presidential race. we've seen people and states who in fact lost jobs and never got anything back. >> look at her own community, tomato growers that have been wiped out, seasonal crop in the summers no longer reductive. people fail to understand that this district is one of the great intercultural resources of the country. we produce more winter crop than any place in the country. the most valuable per acre land in state of the fort in terms of agriculture. we need to make a difference for farmers, to make a difference for workforce. >> let me just say that michael because this is critical issue. the political winds are blowing in a certain direction as we can see we have two presidential candidates and bernie sanders who is out there before trashing
trade. so many south florida families that depend on these jobs. i cannot, under any circumstance turn my back on these policies because i know fundamentally fundamentally that have made our community more prosperous. south florida is a major trade hub. people from all over the world come here, they bring their products and we are more prosperous for it. don't be for the bout tray. we need good trade deals but was really cannot trade her back on trade. >> that's important because we have to follow that up. the reality. the reality is that we have to engage in those discussions that's why we need someone who will work with the white house to make a difference. who will work with secretary clinton and has a history, we know who the next president of the united states is going to be. carless you're not supporting neither one of up. >> we don't know. i don't know. i think on november 8 we will know. >> hold your thought. we'll be back with more of the candidates for congress and the --
>> welcome back. we are in the debate between the candidates for the 26th congressional district in south florida. that is westchester down to key west. joe garcia and carla's curbelo. i have heard you and i think that newspapers described you as a moderate republican. when i mentioned that the other day when i saw mr. garcia is that he's no moderate, he is under a metamorphosis year because here because the district lines have been redrawn. it is a district with more democrats than republicans, and that you are really kind of a conservative in sheep's clothing >> mr. garcia has a long history of launching these type of attacks and trying to confuse people i've always been the same
person. you have no me, the community has on me since since i been on school board. on the school board i have been a consensus builder. i fight for my ideas and my ideals. but at the end of the day must be point republicans and democrats to come together, figure out the big issues and get things done. that's why all all of the bills i passed in congress, i have passed seven bills as a freshman. that's very rare. mr. garcia passed one bill, to name a post office while he was in congress. i passed bolts on transportation, the impairment, education, and i have done it by working with my democratic colleagues because in divided with my democratic colleagues because in divided government especially, the only way anything gets done is by working together. i was been the same person. i didn't jump into this racer change my tune when the district change, mr. garcia did. the district change and mr. garcia jumped in and the crimes that campaign committed jumped in and this is not something -- we will get to those.
>> is mr. curbelo a moderate generally speaking question what. >> you are restating -- the only thing moderate about carla's curbelo is his rhetoric. when you look at his wedding record someone who voted for 48 hour waiting period for a woman who was raped. consistently voted against women's rights. he voted against every single gun control bill up against the house. he voted to close down the government to defund planned parenthood. there's nothing moderate about it except the district change. wanted when it did change suddenly we got a new carless a3. he was modern talk about these issues. let's be clear, the only difference between donald trump and mr. curbelo is that donald trump doesn't have a lot of a record. he has a record against an them against women. he voted four times to keep the president's --
which would change the lives of over 100,000 people in this community, legalize and put them forward in the system and made them pay taxes and increase sellers, didn't do it. >> there has been a litany of attacks and accusations. he says my rhetoric is moderate. his rhetoric is lies. listen to him. you know i have two little girls ages six and four, yet he he says i'm against women. does anyone really believe that question but no. because he is lying. i respect women. you don't. you know what you said about hillary clinton. you said that she was stupid because she cannot outthink you because you think very highly of yourself. secondly, you said that you would not want to have sex with her and she have sex with her and she would not be able to seduce you. i want everybody out there to think about the women out there, but the men who are watching. think about your mom's, think about your sisters, and imagine some guy in a room say that woman, i would not want to have sex with her, she can't seduce me. she's not that smart. you're disrespectful for women and you should apologize today
for that nasty rhetoric that you use. >> everything you just said is completely false. i said. >> gentleman, hold on. let's let the people at home here this for themselves. this was recorded secretly in key west a number of weeks ago at an event the mr. garcia held. if we have if we have that tape ready we will just run this little clip that was recorded secretly and this is mr. garcia speaking. >> hillary is by no means want to have sex with her said deuce you are outthink use. >> so maybe you can explain,. >> i was talking to a guy, michael is stupid, my remarks. the words i chose. i was speaking to a guy who is saying sexist things about her that's why stopped it. the reality is, what we're talking about is someone who is extremely competent. because that's what follows. you know it is offensive when you talk about it, someone who
votes against the interest of women time and again. you think about carlos who said we said mike pence at the top of the ticket. this is a guy guy who voted legislation to make women have a funeral after they've gone through an abortion. vote every time he has. make women weight 148 hours after rate. my position has always to stand on this side of women. >> i don't want to drag this out michael. real quick he just said that he combats sexism with more sexism. what i would've told that man if he is being sexist is to say hey, i have two daughters, mary, what you're saying is offensive. what what you're saying is offensive. what you said is offensive and is that of two as a dad of two girls and a husband of a wife that works as a teacher i find it disgusting. >> i am the father of a girl that just left for college and
the reality is that he is twisting the words because he cannot talk about these issues. he can address that he won't address issues against women. he's against choice and he hasn't adjusted. >> he is sitting here and addressing it will get you to explain your position on choice, both of you when we take back. we will be right back. >> welcome back. we are in the midst of a lively debate between the candidates for the 26 congressional district. mr. curbelo and mr. garcia. let's get this on the record on abortion and on choice. where do you stand? >> i am. >> i am pro-life. i don't apologize for that. i think we have to value all human life. at the same time i understand the law. i think we need to respect the law. what we should do in this country is find a consensus on the issue. that's why i support legislation that says that after
20 weeks which is the period of time after which a lot of doctors and experts believe a baby can feel pain, that we should have no more abortions after that time. i'm proud of that record. by the way, we have two little girls and are raising them this way, to value human life. every abortion is a tragedy. it is tough for the woman and obviously there is a life loss, no matter what your view is on that. we should work together to limit, to reduce the number of abortion. >> that's your position, mr. abortion. >> that's your position, mr. garcia where do you stand? >> this is one of the most intimate decisions woman makes. clearly the government should not get in ball. the reality as it is it is a tragedy when an abortion occurs. the fact that you would write legislation to stop a woman for having an abortion as she after she has been sexually abused or raped is just dangerous. it's out of the norm of thinking of our country and what makes sense. when you think about women you think about healthcare. as someone who has voted seven
times to repeal or rollback, without replacement obama care. that of course the first thing it does is it doesn't discriminate against women. it allows women to be treated the same. this is a healthcare provision that took away if you had a pre-existing condition you couldn't get insurance, now you do. in this community there hundreds of thousands of people who benefited. what we have to do is fix obama care and we will work to do that. and we will work to do that. it's important for women and everybody in south florida. >> congressman, what about obama care. you voted against it if you don't like it what you do? >> at the very least the law needs to be reform to. it is feeling a lot of people. we get the calls in our office, people complaining and saying that they did sign up at then they went to the dr. and they could not afford the high deductible. this law provides a good talking point for politicians who what to show off about the number of people who are insured. what what they don't want to talk about is a number of who
actually have access to quality healthcare. a lot of the people who sign up for obama care you know where they and up? in the emergency room, where they used to go before. this law has law has also wreaked havoc in our economy. a lot of employers are struggling. some some employers have had to lay people off. others have limited workers hours. this law was written by hospitals, health insurance companies, and by big pharma. it's designed to protect their interests per that's white needs to at least be reformed. >> the bottom line is you're saying to repeal it, simply improvement. >> if we can improve it let's do it. if we can replace it with something better that actually puts patients and doctors in control and isn't room for insurance companies, control and isn't room for insurance companies, this is not a laughing matter. there's a lot of people struggling. >> you been in congress two years, the republican leadership has been talking about a replace. when medicare wanted to
place and if they would've had the problems obama care did carlos would've been in congress because he believes medicare is upon the skiing. he is on the record saying that. what is clear is that this is a law that has changed the lives for the better of millions of people, 20,000,000, think again. think about jackson memorial hospital which is on the verge of collapse. because you have obama care today that hospital is thriving, expanding and reaching up. what we have to do just like medicare and the expansion of medicare, work with the system to make it better so covers more people, more affordable, -- let's. >> let's touch on medicare, you like to talk about it but have not proposed solution. both social security and medicare, if we do nothing we will not keep our commitment to younger generations of america. it's a statistical fact. i have proposed proposed reforms to social security and medicare. i've proposed testing to make sure that those needed most gets the most benefits. he has not proposed a single
change for social security and medicare to make it stronger. this is dangerous. by the way, this is mr. garcia's record. he got nothing done in congress. why? because congress. why? because he cannot work with others. [inaudible] [inaudible] >> before we run out of time, just briefly i have to ask you mr. curbelo you introduced a bill who just distinction between cubans who have come here who are migrants for economic reasons and those who are political refugees. why did you introduce that? there has been tremendous fraud in the system and benefits going to people who didn't deserve them. >> that's exactly right. this is a this is a generous country and no community knows that more than the commute cuban community. so many of our families have come over the years, hard-working people, most of them are people couldn't return to cuba for political
reasons. they were being persecuted. the problem today is that every cuban that comes to the united states automatically, no questions ask its welfare benefits. i'm to $1500 per month and direct cash payments, food stamps, and housing support. some of these people, qualify for benefits and then return to live in cuba while they continue receiving these benefits. seniors who arrive from cuba at the age of 65 get social security for life despite never paid into the system. some of them, get more than people have been working this country for 30 or 40 years. this has to be reformed. our bill, by the way about 30 democrats are supporting it, 128 total cosponsors. it says that if you are refugee then you will receive the benefits. if you're coming coming here like anyone from anywhere else in the world then you get a work permit and you can start contributing. we cannot allow for our country's generosity to be abused by anyone, no matter where they're from.
>> again it's targeting, segmenting, if there is abuse let's write a law to stop the abuse. you and i both know where the funds were put here because south florida receives haitian and cuban refugees whether they plan for tonight. it's a huge drain on the economy. >> only cuban refugees get these benefits. >> asian refugees get these benefits as well. >> i know you want to follow. let's be clear . . >> . .
withbe get to zika we're at the outermost limits off our time. before we go i want you both to make a closing statement, and mr. garcia, go first, please. >> michael, look. i think from trump to mr. carballo, what people are tired of is these attacks. there's a record. we have recovered standing up for the community and making a difference for the people of south florida, whether it's hundreds of minimums to an everglades restoration or standing against the gun lobby, who mr. carballo is called a lap dog for the gun industry. our history is working with anymore of florida and with your support and god's favor we'll go back to washington so south