What does civil procedure have to do with LPE? On the one hand, you might think of procedural rules as only instrumentally important. They don’t dictate our obligations, like tort law or criminal law, or define the terms of economic organization, like property law. But anyone wondering why procedure gets a prime place in the first-year law curriculum should consider the famous warning of Congressman John Dingell, who was heavily involved in landmark accomplishments of substantive policymaking like Medicare, the Endangered Species Act, and the Clean Air Act. In Dingell’s words, “If I let you write the substance and you let me write the procedure, I’ll screw you every time.”
In other words, procedure is power. Procedural rules are at the root of how legal institutions make decisions: who gets into court, what burden they must meet to prove their claims, what information they can find out, who decides which party is right, what remedies may be on the table, and more. This means that the set of procedures the law employs heavily influences the ultimate outcomes of any policy choice. Because legal procedures play such an important mediating role between political choices and actual outcomes, understanding those procedures is a key component of the study of law and political economy.
This post focuses on just one aspect of legal procedure—the idea of formal equality in legal proceedings. I’ll explain how the notion of “procedural equality” stands in tension with inequalities that exist outside of legal institutions and provide a few quick examples of this tension in contemporary doctrinal debates. Finally, I suggest two approaches that students of LPE can take to these kind of debates: one with an eye toward understanding what the law does in the world, and the other with an eye toward considering how the law can be used and improved.
Procedural equality and material equality
One of the first things you learn about the Federal Rules of Civil Procedure as a 1L is that the rules are transsubstantive—that is, our legal system often applies the same set of rules across a wide range of legal issues. If you sue the mayor of your hometown alleging a violation of your constitutional rights, many procedural aspects of your case will look similar to a lawsuit brought by Coca-Cola against Pepsi for a violation of antitrust laws. There are, of course, plenty of exceptions—different rules for specialized courts like bankruptcy courts or administrative adjudications before federal agencies—but generally a single set of rules applies to most federal civil actions.
Closely related to the concept of transsubstantivity is the idea of procedural equality. Procedural equality can mean a few different things, but the aspect that I’ll focus on here is the baseline assumption that different litigants’ claims are treated, for the most part, the same—whether a party is a corporation or a natural person, whether they are rich or poor, or (because of transubstantivity) whether they are suing for a breach of contract or a violation of anti-discrimination laws. Again, the picture gets complicated pretty quickly: some parties, like public officials, get to invoke immunities that nobody else does; some procedural inquiries look to an individual’s resources. But, importantly, those laws and doctrines are seen as departures from the baseline of procedural equality.
Of course, this value of procedural equality can be in some tension with a value that I’ll call “material equality,” as a shorthand for the idea of economic, political, or social equality in the world outside courts. Readers of the LPE Blog may be familiar with Anatole France’s mordant aphorism that “the law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets and to steal bread.” Talking about procedural equality in isolation risks making an unfortunate parallel: that the law, in its majestic equality, empowers the rich as well as the poor to hire Cravath to represent their interests in court.
In other words, a gap often arises between the doctrinally constructed idea of procedural equality in the field of litigation and material equality in the world outside. Perhaps most obviously, our legal system requires civil litigants to shoulder costs that result in massive barriers to the non-rich, impairing the ability of many—perhaps most—individuals to obtain recourse when they are legally wronged.
But recognizing this problem is only the beginning of what an LPE perspective brings to the study of procedure. The idea of procedural equality, and the way that it is implemented in procedural rules, brings with it both perils and opportunities. Where individuals do make it into court, litigation can be very empowering. It allows a party to present their narrative and give evidence regarding a dispute; to force the other side to answer publicly and divulge otherwise-hidden information in discovery; and, ultimately, to obtain compensation or injunctive relief that requires the other side to change its behavior. Litigation can magnify the voice of an individual or group, and bring about real change. This power stems, in no small part, from procedural equality—the equal weight with which the law purports to treat different disputes. The rules under which an employee sues her boss, for instance, are the same ones by which the corporation she works for would sue a competitor.
Procedural equality, then, can mitigate material inequality by granting power to individuals who might not have comparable power in other domains. Or it can fail to do so—or even exacerbate inequalities—when it doesn’t account for those external imbalances of power.
Because procedure is about power, it’s unsurprising that many doctrinal debates regarding access to courts highlight this tension between procedural equality and material inequality:
Over the last few decades, the Supreme Court has dramatically expanded the scope of the Federal Arbitration Act, a law passed in the 1920s that enables individuals to agree to private arbitration as a means of dispute resolution, bypassing public courts. While the act originally was interpreted to apply only to agreements between sophisticated parties, like merchants negotiating bespoke deals, it now applies to mass consumer contracts and employment contracts—situations where there are large asymmetries of power and information. Nonetheless, the Supreme Court has repeatedly emphasized that arbitration is justified by the intention and consent of the contracting parties, and has held that courts should enforce arbitration clauses even where doing so prevents, as a practical matter, the ability of parties to seek relief under the law. As a result, repeat defendants can in many places convert market power into legal power—as in the cell phone industry, for instance, where all the major providers (AT&T, Verizon, Sprint, and T-Mobile) have arbitration clauses in their contracts. The reality for most consumers is not that they can bargain for whether to have an arbitration clause or not; they either have to sign up for a plan that limits their legal rights, or forego having a cell phone at all.
Standing and the definition of “injury”
In recent years, the Supreme Court has repeatedly heard argument on the question whether a person should be considered “injured” solely because someone has violated their legal rights, or whether there must be some more “real world” harm accompanying the legal violation. At issue in the Spokeo case, for instance, was whether the publication of false information about a person online can count as a legal injury, even if that person does not prove some subsequent harm that resulted from that publication. The question is important because whether a person is “injured” is a core component of the test for whether that person has standing—a threshold inquiry that determines who can get into court. But one implication of a doctrinal test for “real world” harm is that judges will no longer treat all legal violations equally—instead, they will sometimes have to look behind a legal violation to see if there is some other harm that passes muster for purposes of standing. And that may result in some kinds of injury—like economic harms that can be easily represented in monetary figures—being heard more easily than other kinds of injury, like damage to privacy concerns. As you might imagine, that disparate treatment in claims may mean that certain kinds of parties (like businesses) have an easier time getting heard than other kinds of parties (like consumers).
Rule 23 of the Federal Rules of Civil Procedure is possibly the most important example of the law creating a formal procedural mechanism to address disparities between parties and claims. On its face, Rule 23 is completely consistent with formal procedural equality—there can be classes of both plaintiffs and defendants, and the class mechanism is at least theoretically available for nearly any kind of claim. But in practice, class actions are used almost exclusively by plaintiffs, and often to aggregate small claims that would not likely provide a basis for individual lawsuits. Class actions thus have the effect of empowering people who are likely to be small-claims-holders (consumers, voters, employees, shareholders) against those who are likely to be in a position to wrong many people at once (large corporations, governments).
This context illuminates any consideration of the spate of major class-action cases handed down by the Roberts Court—Wal-Mart v. Dukes, AT&T Mobility v. Concepcion, Comcast Corp. v. Behrend, Amgen Inc. v. Connecticut Retirement Plans, American Express v. Italian Colors Restaurant, and more. The changes wrought by these cases are complex, and could themselves be the basis for an entire series of blog posts. But, in general, the major opinions in class-action doctrine in the past couple decades have given little weight to the role of Rule 23 for addressing material inequality and deterring bad actors, instead placing a variety of hurdles in the path of would-be class litigants, often with formalistic justifications.
The formalist approach was arguably at its peak in Italian Colors, a case at the intersection of class actions and arbitration. In Italian Colors, the Court upheld class action waivers in arbitration clauses even where that made the plaintiffs’ claims economically infeasible to pursue. The court concluded that “the fact that it is not worth the expense involved in proving a statutory remedy does not constitute the elimination of the right to pursue that remedy.” In other words, because the theoretical right to bring a case still exists, the Court need not concern itself with privatized procedures in arbitration that, practically speaking, make entire categories of claims too expensive for injured parties to pursue. Rather than simply ignoring the material differences between different kinds of claims and different kinds of litigants, the Court looked those differences in the eye and said, in the words of dissenting Justice Kagan, “too darn bad.”
Two ways of approaching the tension
Where does that leave students of procedure and LPE? How should we approach the tension between procedural equality and material inequality?
As the above discussion provides a glimpse of, this tension exists not only in the brute fact that we have a private market for legal services—and so market inequalities result in differential access to justice—but also in what might be thought of as the “substance of procedure”: the doctrines, laws, and policies that structure our legal proceedings. Procedural equality is an idea that is constructed and implemented by a variety of doctrines, and can be used as a sword or as a shield by defendants and plaintiffs alike.
Legal procedures are, ultimately, both a set of forces to be understood and a set of tools to be deployed. This corresponds roughly to the dual roles of law schools—as sites of inquiry and also of professional training. These dual roles are reflected in different kinds of questions we can ask: What are the effects of a doctrinal decision to acknowledge or ignore the tension between procedural and material equality in a given context? How can lawyers use the traditions and values associated with procedural equality to benefit their clients?
An LPE approach can examine procedural rules and doctrines from both of these perspectives: trying to better understand both what the law does and how to “do” law. Appropriately enough, the Federal Rules of Civil Procedure themselves represent an amalgam of these two approaches. They were born from a realist jurisprudence that broke with the formalism of the day to focus on the law’s effects in the world. And they were an attempt to construct a corresponding new set of procedures and doctrines that would provide guidance and flexibility for courts and litigants going forward. As the semester ends and 1Ls begin reviewing the FRCP in preparation of final exams, we can all appreciate what the rules reflect: an effort to better understand the law’s role in the world, and an idea as to how to improve it.
Daniel Wilf-Townsend is an attorney at Gupta Wessler in Washington, D.C.