This Friday, the Case Western Reserve Law Review is hosting a symposium on "Access to Justice in the Roberts Era." Topics to be covered include preemption, standing, and arbitration requirements. Here's the write-up:

The Case Western Reserve Law Review Symposium will explore the access individuals have had to the courts since the appointment of Chief Justice Roberts to the United States Supreme Court, as well as the future of access issues in what has been called the "Roberts Era." Keynote speaker Gene Nichol will address emerging trends concerning access to the courts and standing rights. Symposium panelists, who are among the country's leading experts in the field, will examine a wide array of issues critical to an accessible judiciary system.

In addition to Prof. Nichol, other speakers will include Roderick Hills (NYU), David Vladeck (Georgetown), Michael Solimine (Cincinnati), Catherine Sharkey (NYU), and Robert Glicksman (Kansas), as well as several of us CWRU folk. Here is the full agenda. The event will be webcast for those unable to attend.

The Roberts Court's record on access to justice is more mixed than some critics recognize, and a greater (if rarely discussed) problem is that the economically disadvantaged lack equal access to justice in the United States, argued UNC law professor Gene Nichol in his keynote address at the Case Western Reserve Law Review symposium on "Access to the Courts in the Roberts Era." While the Roberts Court has shown greater sympathy for federal preemption, refused to find implied causes of action in federal statutes, shrunken the availability of habeas corpus, turned away from facial challenges to federal statutes, and strictly enforced statutory limitations on suits, Nichol noted that the Roberts Court has expanded access to justice in other areas. In the enemy combatant cases, particularly in Boumediene, the Court bravely rejected the political branches' attempt to limit detainees' habeas claims, and cleared the way for a wave of gun rights lawsuits with D.C. v. Heller.

Turning to standing, an area in which Nichol has written several important articles, he noted that the Roberts Court has done relatively little to curtail Article III standing. In Hein the Court refused to overrule Flast v. Cohen (even if it "treated it rudely"), and expanded the ability of states to sue in federal court in Massachusetts v. EPA. This Court's failure to limit standing is perhaps notable because it appears to be an issue of great concern to the Chief Justice. In 1993, Roberts wrote an article defending the Lujan decision (and, interestingly enough) disagreeing with Nichol's work in the area. Roberts had argued that the injury requirement was a politically neutral limitation on jurisdiction, limiting conservative and liberal interests alike.

Nichol takes a different view, arguing that the Court has failed to develop and impose an Article III standing requirement in a neutral fashion. Application of Article III's requirements has become little more than an "opaque labeling exercise." Instead, the Court repeatedly goes through a "Bush against Gore shuffle" in which the standing requirements are loosened or tightened depending on the justices' sympathy for the parties and views of the merits. In Nichol's view, environmental plaintiffs and those challenging race-conscious government decisions have a relatively easy time satisfying standing requirements, while other plaintiffs with similarly diffuse or generalized concerns do not. In short, Nichol argued, standing, in practice, is not a neutral or apolitical limit on federal court jurisdiction.

Nichol closed suggesting that most discussions of "access to justice" overlook some of the broader systemic problems faced by the economically disadvantaged. No matter what the Court may do on standing, the poor will continue to face greater obstacles in bringing their claims forward. Insofar as wealth can purchase greater legal talent -- and that the ability to hire higher priced lawyers influences legal outcomes -- Nichol suggests that lawyers and academics should have greater concern for the underlying inequities of the legal system. Expanding standing for elite environmental interests may be all well and good, but it does not address what Nichol believes is the greater "access to justice" issue.

In my own remarks at the Case Western Reserve Law Review symposium on "Access to the Courts in the Roberts Era," I argued that the net effect of the Roberts Court's decisions on standing has been to liberalize standing rules, thereby increasing access to federal courts. I, of course, noted the problem of reaching definitive conclusions after only three years (particularly with a potentially significant standing decision Summers v. Earth Island Institute still to come this term), and also noted that most of the recent standing decisions have been relatively insignificant. But those that have changed standing law, in particular Sprint v. APCC and Massachsuetts v. EPA, have expanded Article III standing. More from my remarks below the jump.