U.S. Courts Said To Abet Monopolies and Unfair Competition

The U.S. Courts were sharply criticized this week by a bipartisan subcommittee of the House Judiciary Committee for essentially undermining federal antitrust laws through the use of procedural obstacles and unfair legal doctrines.

The Subcommittee on Antitrust, Commercial and Administrative Law issued a report stating that in the decades since the U.S. Congress enacted antitrust laws “the courts have significantly weakened these laws and made it increasingly difficult for federal antitrust enforcers and private plaintiffs to successfully challenge anticompetitive conduct and mergers.”

By adopting a “narrow” definition of consumer welfare as the sole goal of antitrust laws, the report states, the U.S. Supreme Court “limited the analysis of competitive harm to focus primarily on price and output rather than the competitive process – contravening legislative history and legislative intent.”

An email request for comment sent to the Administrative Office of the U.S. Courts was not acknowledged.

The subcommittee also blasted Congress itself for failing to step in and correct court rulings adverse to the plain language of antitrust laws. In the past, the report states, Congress regularly investigated the rise and abuse of market power but its attention in recent years has “fallen short” in the face of “ferocious opposition” from lobbyists.

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Open Court Advocates Tell U.S. Judiciary: Reform is ‘Imperative’

A group of open court advocates has appealed to the Administrative Office of U.S. Courts to support bipartisan legislation to make federal court documents free and easily accessible to the public.

Currently, members of the public must pay ten cents a page, up to $3 a document, to view federal court records on-line, which deters people who cannot afford an attorney and have no choice but to represent themselves or abandon their rights.

The House Judiciary Committee last week in a bipartisan vote approved the Open Courts Act of 2020 to lift the paywall on the federal court database of case decisions and documents. The act, which includes a “pay-for” provision to support the service, would require the AO to modernize and make the database free to the public.

“Reform is often challenging, but it is imperative when the status quo limits access to justice. It is unjust to charge for court documents and place undue burdens on students, researchers, pro se litigants, and interested members of the public – not to mention the journalists who cover the courts.”

This was the message sent in a letter Tuesday to James C. Duff, director of the Administrative Office of the U.S. Courts. It was signed by eight retired federal judges, Chief Justice Bridget Mary McCormack of the Michigan Supreme Court, Fix the Court (which released the letter) and other open government advocacy groups, several university law libraries and groups that represent the media.

If approved by Congress, the letter writers state, the “aging and difficult to navigate” federal court database would become “modern and user-friendly.”

Why Must Congress Drag The Federal Judiciary Into the 21st Century?

The House Judiciary Committee unanimously advanced a bipartisan bill this week to improve access to federal courts by forcing the federal judiciary to make its court documents free to the public.

The Open Courts Act (H.R. 8235) if adopted, will make it much easier for individuals who cannot afford to hire an attorney to represent themselves in employment discrimination lawsuits. At least a quarter of federal lawsuits are brought by self-represented or pro se plaintiffs.

At present, the Administrative Office of U.S. Courts (AOC) operates a complex data base system called Public Access to Court Electronic Records (PACER) that charges viewers ten cents a page, up to $3 per document, to view court documents.

The system costs an estimated million dollars per year to operate but yields fees estimated at $146 million per year, resulting in a growing surplus.

House Judiciary Committee Chair Jerrold Nadler, D-NY, said at a hearing Tuesday that federal courts have “lagged behind modern standards of accessibility and openness.” He noted Congressional documents are free and easily accessible at congress.gov . By contrast, he said PACER is “difficult to understand,” “cumbersome” and carries “a landmine of fees.”

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