As University of the District of Columbia law professor Joseph Tulman, who knew Bellow and now employs a similar strategy in Washington, D.C., reflects, "Lots of times the law is pretty good, but nobody's using or enforcing the law on behalf of low-income people." "[Bellow’s] strategy," Tulman says, "was if you could plunk in a bunch of law students and let these low-income tenants know that they had the warranty of habitability [a tenant-friendly legal doctrine] on their side, it would change what the landlords’ attorneys could get away with and change the expectations of the judges, the tenants, and the landlords’ attorneys."
The flood of lawsuits produced the positive externality of changed expectations—which in turn could create Bellow’s “eviction-free zone.”
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It’s important not to oversell what lawyerly creativity can accomplish in the face of judicial constraints. Bellow was able to run all those cases in Jamaica Plain, after all, because progressive judges had, in the years preceding, developed new legal doctrines that protected clients like his. Meanwhile, though Gallo has been able to achieve results for more than a thousand culinary-school graduates with medium-sized claims, millions of American consumers who have suffered smaller harms have perhaps less recourse than ever before.
Take, for example, two recent Supreme Court decisions that are less famous than Wal-Mart, but arguably much more pernicious: AT&T Mobility v. Concepcion (2011) and American Express v. Italian Colors Restaurant (2013). Both cases addressed the validity of so-called “arbitration agreements”—terms-and-conditions clauses requiring the customer to pursue legal claims through individual arbitration rather than a class action. Most of us sign these kinds of agreements with the click of a button every day, and past courts have often held them to be unenforceable. But now, the Supreme Court’s slim conservative majority has suggested that those days are gone.
In cases like Concepion and Italian Colors, the small-harms problem looms large. Neither case dealt with blockbuster wrongs: In Concepcion, the dispute was over $30.22 in unexpected charges for what AT&T had billed as a “free” phone. “What rational lawyer would have signed on to represent the Concepcions in litigation for the possibility of fees stemming from a $30.22 claim?” asked Justice Breyer in his dissent, quoting Seventh Circuit Judge Richard Posner’s opinion in another case: “The realistic alternative to a class action is not 17 million individual suits, but zero individual suits, as only a lunatic or a fanatic sues for $30.”
The result for these small harms, the critics note, asymptotically approaches corporate immunity. As Justice Kagan wrote in her Italian Colors dissent:
So if the arbitration clause is enforceable, Amex has insulated itself from antitrust liability—even if it has in fact violated the law. The monopolist gets to use its monopoly power to insist on a contract effectively depriving its victims of all legal recourse. And here is the nutshell version of today’s opinion, admirably flaunted rather than camouflaged: Too darn bad.
“It’s a get-out-of-liability-free card,” explains Doug McNamara, a lawyer with Cohen Milstein, a prominent class-action firm. His firm, he explains, has had to pass on “a whole lot of good cases” because of the new judicial constraints; big cases they’ve won in the past, he observes, could never have been brought in the first place. “It basically says, if you nickel-and-dime people, you’ll get away with it.”