Wednesday, March 5, 2008

Why Jamie Leigh Jones Can’t Take Halliburton to Court

Why Jamie Leigh Jones Can’t Take Halliburton to Court

By Steve Benen

Go To Original

Back in December, we learned the painful story of Jamie Leigh Jones, who says she was gang-raped by Halliburton/KBR coworkers in Baghdad. Jones filed a lawsuit, arguing that she had been raped by "several attackers who first drugged her, then repeatedly raped and injured her, both physically and emotionally."

Jones told ABCNews.com that an examination by Army doctors showed she had been raped "both vaginally and anally," but that the rape kit disappeared after it was handed over to KBR security officers.

This week, it appears that Jones is without legal recourse.

Thanks to an order signed by Paul Bremer, employees of U.S. contractors in Iraq are beyond the reach of the Iraqi criminal justice system, leaving them effectively in a legal black hole.... They could technically be tried in U.S. federal court for offenses committed in Iraq, but logistically that would be very difficult and the Justice Department has shown no interest in prosecuting Jones's case, meaning her assailants almost certainly won't face any criminal penalties.

But, to make things worse, as Peggy Garrity points out in an op-ed in today's Los Angeles Times, Jones also will likely be unable to pursue a lawsuit in civil court. For one thing, Halliburton claims it has mysteriously lost the doctor's report and photographs taken by a military doctor the day after the rape occurred, so it would hard for her to build a case in the first place. But even if she could, her employment contract stipulated that disputes would be resolved through a binding arbitration process, which lacks (among other things) a jury, rules of evidence, an appeals process, and -- perhaps most importantly -- media access and a transcript. Federal courts in Texas, Garrity notes, have recently proven fastidious about upholding binding arbitration clauses in all cases.

Jones couldn't seek criminal justice against her attackers, and then she couldn't seek civil justice, either.

It's the result of "tort reform."

Garrity's op-ed is worth reading in its entirety.

This is a preview of the demise of the jury system intended by the innocuous-sounding tort reform movement. "Tort reform" is a deliberately deceptive term coined in the 1980s by tobacco, pharmaceutical, insurance and gun lobbyists and lawyers who set about to transform our civil justice landscape by eliminating corporate exposure to civil liabilities. After years of an all-out campaign, at the heart of which was relentless media propaganda, judicial selection and legislation, the courthouse doors are rapidly being closed to average citizens, who will be shunted off into a lucrative private legal system presided over by retired judges employed by alternative dispute-resolution providers.

Many Americans would be surprised to learn they are barred from pursuing a case in court because of boilerplate binding arbitration clauses buried in forms they signed with banks, real estate and escrow companies, auto dealerships, medical care providers (including hospitals) and many other people and entities that may have caused them harm. Yet that's often the case (and what happened to the two Halliburton employees would have been the same, even if they'd been in Wisconsin rather than Iraq).

Arbitration was marketed as "faster and cheaper." Well, it certainly is for these business interests. It is a different story for the rest of us.

In such arbitration proceedings, there is no public or media access, no rules of evidence or procedure, no court transcript, no jury and, most important, no appeal -- no matter what. Quite simply, there is no accountability in binding arbitration, in which the arbitrators and alternative dispute-resolution providers are paid by the corporate defendants -- who are also likely to guarantee repeat business.

Binding arbitration clauses were drafted and put into form contracts by lawyers for the corporations that stood to benefit from them the most. And, it could be argued, the real "judicial lottery" harped on by the tort reformers was the one implicitly offered to members of the judiciary, who are now cashing in.

Tort reform is a game of bait-and-switch in which ordinary citizens have been snookered by carefully orchestrated and relentless propaganda into seeing a phantom boogeyman in the much-reviled "trial lawyer" who brings "frivolous lawsuits" to "runaway juries" that render "out of control verdicts" in "judicial hellholes," making insurance rates and the costs of all goods and services go up.

Well, none of those expenses have gone down, have they? All the while, the real target was the justice system set up by our founders to protect the average citizen, and now it is in serious peril.

The mind reels.

No comments: