This post kicks off a symposium on the law and political economy of civil procedure. Read the rest of the posts here.
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Civil procedure is political economy all the way down. The construction and application of procedural rules have distributional consequences and can significantly affect people’s social and economic relations, rights, and entitlements. From the requirements for filing a complaint to defenses, class actions, summary judgment motions, and more, procedure can facilitate or thwart the pursuit of claims across a spectrum that includes common law, statutory, and constitutional rights.
Procedure can be a mechanism through which commitments to equal treatment and open and accountable decision-making materialize. The Federal Rules of Civil Procedure, adopted in 1938, aimed to breathe life into fairness and due process values, enabling meaningful participation by rejecting the common law forms of action and code-like pleading and thus easing the means for litigants to begin lawsuits, requiring information exchange, welcoming the presentation of evidence, and facilitating decisions based on the record presented. During many decades of the twentieth century, social and political movements sought to generate new rights, and members of the public turned to courts to enforce claims. These litigants’ expectations were predicated on provisions in many state constitutions of “rights to remedies” in “open courts” and “due process of law,” which legislatures have for centuries supported through funding judges and courthouses and giving courts power by expanding their jurisdiction. And, at the same time, legislators passed more regulatory laws that included private rights of action that authorized courts, litigants, and lawyers to be central actors in enforcement. In response to these developments, legislatures and rulemakers retooled procedures to enable claims-making and rights-enforcement, including through the 1966 amendments to the class action rule and the 1968 Multi-District Litigation statute.
The impact of aspirations for access and equality is limited by asymmetries of resources, judicial interpretations of procedural rules, and mandates enforced by courts not to permit adjudication or collective actions. Procedure can thus be shaped for different ends: to enable claims-making in some eras and to limit access in others, as in our current “restrictive” era. As Marc Galanter wrote decades ago, “the haves”—repeat players—have the capacity to use their resources to shape and alter procedure and law in ways that “one-shot” litigants mostly do not (absent collective action). Many repeat players have leveraged their market power into procedural power that blunts the authority of courts to regulate such power, to protect against various forms of discrimination, and to ensure safety in the workplace and consumer marketplace.
Efforts to constrain the use of courts emerged in conjunction with efforts to broaden opportunities to go to court. As Myriam Gilles and others have written, the privatization of process is a core example. In the last few decades, many manufacturers, employers, and providers of services have, through arbitration clauses, insisted on waivers of rights to use courts and pursue collective actions. The U.S. Supreme Court’s enforcement of those provisions means that, to the extent remedies can be pursued in many cases, individuals need to go single-file to a private provider of the would-be defendant’s choice. Under their own procedural rules, arbitrations are not open to the public, nor are the results—absent regulation such as a California statute mandating that providers of consumer obligations file quarterly reports. Without being able to watch processes or know outcomes, the entities to be regulated are able to control the procedures used to enforce that regulation.
Funding is a key facet of procedure’s political economy story. Courts are, in one sense, “social and economic rights”—an affirmative obligation that states have long undertaken. Doing so is in service of both governments and individuals; courts are “Janus-faced” in that governments rely on them to support stable economic and social orders, and individuals and groups hope that courts will respond to their claims of right. Like other such government obligations in the United States, issues of distribution arise. Courts impose “fees” for entry; under constitutional developments of the twentieth century, on occasion courts require governments to subsidize certain kinds of litigants (including in the divorce and paternity contexts). Unlike government financing of other services, such as voting, incentives for filing are made complex because litigation entails strategic interaction that inflicts costs on opponents—rich and poor. Hence, questions of fairness to all parties are ever-present. And as courts have recognized new rights, demand for legal services has grown, as has the demand for subsidies and support. One example is the Legal Services Corporation (LSC), created by Congress in 1974, which has been funded since then to provide millions of dollars each year of legal aid to those who could otherwise not afford it. As its annual reports make plain, congressional funding is short of the needs of the litigation system. Eligibility requirements are restrictive and allocated funds do not come close providing resources to those who meet eligibility requirements.
Many court systems are underfunded, and many litigants are likewise in need of resources. The problems are acute in state courts, where more than 95 percent of litigation takes place in the United States. Scholars have documented the number of “lawyerless courts” in which one or both sides is self-represented. In most state civil trial courts, “more than three-quarters of cases involve at least one unrepresented party”—including those in the debt-collection and family law spaces, where “millions of low- to middle-income people without counsel or legal training must protect and defend their rights and interests in courts designed by lawyers and for lawyers.” In federal court, one-quarter of all complaints filed are by people who represent themselves, and half of the appeals are likewise brought by self-represented litigants.
The absence of counsel—given the current procedural structure—undermines the idea that adversary exchanges will generate outcomes based on sufficient information and legal argument. Resource disparities between represented and unrepresented parties produce pressures that can result in default judgments or “litigated” decisions based on insufficient information or legal records. Examples include rubber-stamped default judgments without inquiry into service of process or personal jurisdiction; motions to dismiss without opportunities for discovery; and summary judgments when issues of fact merit a trial. In many settings, a landlord as a plaintiff or commercial entity as a creditor brings assembly-line cases against tenants and debtors who represent themselves. Eviction proceedings may entail cursory or no review of settlements that landlords draft and impose on tenants. At issue is how paths to remedies can be crafted that recognize these inequalities.
In sum, procedure is a dense site of the ideas that fall under the rubric of LPE, even as it can also be at times technical and abstruse. Despite claims of procedural rulemakers that they do not engage in “substantive” policymaking, procedure affects substance and is central to the allocation of various rights, liabilities, and opportunities. Procedure reflects and constitutes facets of social, economic, and political life and is critical to securing or limiting market protection, constitutional and statutory entitlements, and fair distributions. Changes in technology—most recently through the shift to online platforms and evolution of AI—also need to be interrogated in terms of their distributional impact, the capacity for oversight, access, and public accountability.
As has been vivid in the recent weeks, procedure is deeply related to the U.S. regulatory state. Decisions by the Supreme Court have undermined the independence and capacity of agencies as rulemakers, statutory interpreters, and adjudicators. Judicial interest in originalism (with its variegated meanings and applications) is affecting arguments about procedure’s constitutional footings and innovations. The role played by the Court has both highlighted its own power and made imperative efforts to design responsible, record-bounded, public decision-making, whether in courts or agencies. Procedure must adapt to new conditions as it maintains principled commitments to accountability, transparency, inclusion, fairness, market protection, and “equal justice under law.” We welcome continuing the discussion of how to fashion procedures requisite to these challenges.
