Transcripts For CSPAN2 Discussion Focuses On Access To The C

Here on cspan2. [inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations] hello, everyone. Thank you so much for being here at the Georgetown Law School Supreme Court institute. My name is elizabeth, and im president of the constitutional 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, cohosting this event tonight with the Supreme Court institute and major thanks to dory bernstein, the institutes 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 dont get their day in court. They dont 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 governments 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 constitutions 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 constitutions promise of access to courts, is available outside the room tonight or on cacs 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 theyll 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 postscalia 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, tonights 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 ill 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. Were here today to discuss access to courts, and were 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 banks 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 theyll 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 thats okay, well enlighten you about it here today. And were 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 constitutions promise of access to courts. So were going to start off by talking about the Supreme Court case, and then were going to move on and talk more generally about these access to court issues. Im 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 coauthored 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 coauthored a book on religious liberties and, of course, he also authored the report were 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 coauthored 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 aclus National Prison project. He is one of the authors of the brief on in support of the city of miami. And jeffreywall is cohead of cromwells litigation practice where hes argued cases in the Supreme Court and many appellate courts. He also worked in the office the solicitor general and has coauthored 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, ive 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, its just to make sure everyone understands what that case is about, and then ive asked [inaudible] to fill in any gaps from the responsibilities side, and then well start the respondents side, and then well 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 wasnt 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 isnt the type of claim, its too remote, its 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. Its 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 thats 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 thats 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 . Thats 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, theres a long history of discrimination in terms of housing, housing discrimination against africanamericans within the United States. And so i think for the city and, certainly, from ldfs perspective, this case comes within that larger or context larger context of housing discrimination against africanamericans 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 thats 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. Its not thats 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. Its 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, thats 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 Courts decision last year recognizing disparate impact and seeks redress for violations of the law that have a disparate impact on africanamericans 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 theres a split between the circuits and how theyve 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 thats 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 thats 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 respondents 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 petitioners 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 theres 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 theres two ways to think about that. The first is that actually, im going to say theres 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 linedrawing exercise which many of you know from your firstyear classes is the thing that all law students love, linedrawing exercises of finding that precise line. Ultimately, we donting 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 dont 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. Thats 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 theres 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 doesnt 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 africanamerican communities that make up the city.