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Lawsuits shouldn't be the only way people can fight big business

Krystal Ball is concerned that cutting down on the number of lawsuits that make it into court will make it harder for citizens to fight back against big busines

Krystal Ball is concerned that cutting down on the number of lawsuits that make it into court will make it harder for citizens to fight back against big business. But class-action suits shouldn't be their only recourse in the first place.

On Wednesday's edition of The Cycle, attorney Philip K. Howard pitched an idea he had first introduced in the pages of The Atlantic: give judges in civil courts broad discretion to "push back on absurd plaintiff claims."

"Whether a claim is a valid claim or not, at some level, has to be decided by a judge," he said on the program. "And judges aren't doing that. They sit on their hands and let people sue for almost anything." Instead, he argued, they should be able to throw cases out of court when the plaintiff's complaint is obviously unreasonable.

Krystal Ball, a co-host of The Cycle, was sympathetic to Howard's argument. But she also had misgivings.

"If you are an average person who is legitimately injured, this is one of the only areas in our society where you, personally, can actually bring to account that corporation—that whoever—who has wronged you," she said. But while her concern is justified, it makes one wonder if she's chosen the right target here. Maybe the problem is not simply one of keeping the courts open, but also of safeguarding other ways for injured people to hold the perpetrators to account.

Take worker lawsuits against their employers, particularly class-action pay discrimination lawsuits. Even though judges don't have as much latitude as Howard would like to throw cases out of court, there are plenty of other barriers in place to a successful class action. The most obvious one is in terms of economic inequality: the bigger the pool of claimants in a class-action suit, the more likely that their suit is against a major corporation. And the bigger the corporation, the more likely it is to purchase the best legal representation money can buy.

But the problem goes even deeper. It has also, very recently, become more difficult for complainants to even be recognized as part of a class-action suit. Last year, the Supreme Court ruled against a group of 1.5 million Wal-Mart employees who believed they had been victims of systemic gender discrimination. By denying those workers class-action status, the Huffington Post reported, the Court set a new precedent and "reinforced the advantages of corporate scale."

To be sure, the ruling was a travesty. But the fact that those Wal-Mart employees saw no choice but to file suit was already a travesty. There's another option that, though never really available to them, certainly should have been: unionization. Those women should have been part of collective bargaining units, with contracts that safeguarded against pay and promotion discrimination. And if Wal-Mart violated those contracts, the aggrieved workers should have been able to exercise their legal right to strike.

Sadly, American unions are bleeding dry, and Wal-Mart is one of the most notorious modern union-busters. That in itself is a crisis to dwarf America's culture of litigiousness. And unless the trend of de-unionization is reversed, no number of class-action lawsuits will protect American workers from workplace domination.