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Star Chamber Justice
The procedures in nearly all civil litigations which pit big
corporations and big corporate law firms against small firms have
undergone a quiet but insidious counter-revolution. This is especially
true in antitrust where often small firms complain against the
anti-competitive behavior of the big monopolists.
The significant action in these cases has been shifted to
pre-trial discovery, motions and arguments. The big firm pushes the
envelope blatantly during the discovery phase. Whatever gets by its
purging of compromising documents is placed under seal without regard to
the rules governing secrecy designations.
The big firm then routinely moves for summary judgment
because the small firm has not amassed enough evidence of wrong-doing.
Overburdened lower court judges usually grant these motions because they
don't want to go through a trial only to have it overturned upstairs.
The overburdened appellate courts then do their utmost to get rid of
cases. Once the appeal fails, the wrong-doings which did get past the
discovery phase remain sealed allowing the big corporation to go on its
merry way screwing the competition.
Much of this is new. Nader has fulminated about it and even
that left-wing Supreme Court Justice Rehnquist has denounced this trend
of adjudicating cases before a jury hears them. The secrecy conditions
of these determinative pretrial proceedings have been less discussed for
the obvious reason that there isn't much to discuss when everything is
In addition, what has escaped notice is that this
counter-revolution has in effect brought back Star Chamber proceedings.
The Star Chamber was a royal English court which was notorious for its
secret sessions without jury and for its arbitrary judgments. It was
abolished in 1641 during England's last revolution. Three hundred years
later, we are back as if Cromwell never happened, except that absolute
monarchy has been replaced by absolute monopoly power.