Teaching Civil Procedure with Political Economy in Mind

Helen Hershkoff–

Over a decade ago I wrote a short piece called “Poverty Law and Civil Procedure: Rethinking the First-Year Course [Poverty],” published as part of a symposium issue of the Fordham Urban Law Journal on the place of poverty in the law school curriculum. Reginald Heber Smith’s statement from 1919 was the epigraph: “The administration of American justice is not impartial, the rich and the poor do not stand on an equality before the law, the traditional method of providing justice has operated to close the doors of the courts to the poor, and has caused a gross denial of justice in all parts of the country to millions of persons.”

Poverty was practical and concrete, conceived almost in the style of Teacher’s Manual (indeed, it was geared to the casebook I know best, Friedenthal, Miller, Sexton & Hershkoff, Civil Procedure: Cases and Materials). I took inspiration from Kevin Johnson’s earlier article on introducing race into the 1L curriculum. Re-reading Poverty, it’s clear that the pedagogic suggestions are allied with the theoretical premises identified in this blog’s (near-)manifesto—(1) that politics and the economy “cannot be separated,” i.e. politics affects the distribution of economic resources and wealth affects the distribution of political power; and (2) that law constitutes, creates, promotes, and reshapes politics and the economy and is, in turn, affected by both. Here I sketch out some of Political Economy’s more important themes that relate to 1L Civil Procedure and begin to update the teaching approach in light of a few doctrinal developments. The goal is not a mechanical add-on of ideas associated with Political Economy, but rather to encourage a space in the 1L curriculum where suppressed issues about law and  power, both political and economic, can be raised and explored at an early stage in the students’ legal education.

Discussing rules of procedure as processes that regulate and create power and wealth may come as a surprise to students.  Anyone who teaches Civil Procedure knows that students bring many conceptual priors to the classroom. Perhaps above all, many students hold the implicit view that procedure is merely technical. This view is expressed in the cliché that procedure is concerned with the rules of the game and not the game itself. Moreover, the view is justified as a principle of fairness: that a rule of procedure by definition must be neutral and indifferent to questions of political and economic distribution; the point is to provide disputants an unbiased chance at success, and not to extend partisan benefits on one party rather than another.

Attention to Political Economy challenges this view of procedure at every turn. Litigation in the public courts—which are a public good and depend on public money for their upkeep and administration—allows a private party to leverage public power for its own benefit, in the sense of securing redress, of cutting off rights, and of enhancing private wealth. Even when the law does not acknowledge as much, not all private parties have the same capacity to leverage the power of public courts in their favor. “Equal justice under law” may be engraved on the building that houses the Supreme Court of the United States, but the judiciary’s procedural rules, because they  accept the existing social, political, and economic inequalities as their starting point, in practice reinforce wealth and power differentials by allowing them to translate into litigation benefits and advantages. Not everyone has the means to litigate in the federal courts of the United States; not everyone can afford a lawyer to navigate those courts with any efficacy. A person may be too poor to declare bankruptcy if payment of the fee is out of reach; a person may face eviction without the benefit of counsel if too poor to hire a lawyer.  Once within the federal courthouse, the Federal Rules now emphasize quick and early dismissal of claims, justified by the myth of a litigation explosion. The empirical basis for that explosion remains contested, but it provides the rationale for blocking discovery, impeding the civil jury right, and shifting many small claimants—consumers, workers, and those whom Marc Galanter famously called the “have nots”—out of the public courts and into  private sites of “alternative” dispute resolution. These private sites are not bound by much of the law enacted by public bodies except those that bar these weaker parties from engaging in collective action through a class suit.

Chapter 1, p. 4–5, of Friedenthal, Miller, Sexton & Hershkoff, now in its Twelfth Edition, gently opens the door to these questions by asking the students to focus on the idea of procedural values—what they are, how they are put into operation, how they are chosen, and who decides when values come into conflict. The materials invite the students to engage in a thought experiment: why is it wrong—if indeed it is wrong—for the judge in the Avista Management case to have ordered the parties to play the children’s game of “rock-paper-scissors” on the courthouse steps to resolve a discovery dispute? The point of the exercise is to surface and then dispel the notion that procedural rules are natural or essential. To the contrary, procedural rules reflect political choices and they affect substantive outcomes in ways that are subtle and indirect. As Judith Resnik observed at a conference celebrating the fiftieth anniversary of the Federal Rules:

I believe we cannot and should not ignore the political content and consequences of procedural rules. Over the last decade, a variety of powerful ‘repeat players’ have sought, sometimes openly, to influence ‘court reform’ efforts. By and large, that work has been done not by letters written to the Advisory Committee on Civil Rules, but rather by lobbying efforts directed towards legislatures and the public, by well-financed media campaigns, and by support for conferences and meetings to address and describe the ‘litigation crisis.’ However appealing might be the notion that writing the Rules of Civil Procedure (in contrast to the Rules of Criminal Procedure) is a ‘neutral’ task with diverse consequences on anonymous and interchangeable civil plaintiffs and defendants, that description is no longer available. ‘Tort reform,’ among other events of the last decade, has denied us the refuge of a comforting image.

By acknowledging the value choices that are at the core of procedural rules, students are in a better position to assess the current regime’s emphasis on efficiency over fairness, the narrowing of interests given significance in the design of the Federal Rules, and the distributional effects of these rules on wealth formation and rights enforcement. As my colleague Arthur R. Miller has written,

Whether litigation takes too long or costs too much is ultimately a normative question not truly answerable by empirical data. There is no stable, objective line demarcating what cost is too high or how long is too long. Opinions surrounding these matters reflect attitudes about how accessible our courts show be, who will benefit or be hurt by an increase in cost and delay, how much precision or certainty the system should demand at each point in the procedural process, and perceptions about what role litigation should play in our society.

The role of judicial discretion in the operation of the rules and in exacerbating their uneven effects on wealth and power also can be explored (perhaps later in the course in the context of Chapter 8 on pleading, Rule 12(b)(6), and the higher dismissal rates of civil rights claims).

Of course, Civil Procedure is not only about the Federal Rules. It also includes doctrines freighted with constitutional significance, including subject matter jurisdiction, personal jurisdiction, the jury trial right, and requirements of notice and an opportunity to be heard (for example, concerning the validity of provisional remedies). One theme to explore concerns the effect of jurisdictional rules on the shape and content of the political community.

Students likely have studied Dred Scott in a college history course, but they may not have made the connection between the U.S. Supreme Court’s interpretation of the grant of diversity jurisdiction and the creation and maintenance of a racialized political infrastructure.  A number of cases in Chapter 4 illustrate this theme: (1) Dred Scott, p. 282 (holding that an African slave is not a member of the political community and may not invoke diversity jurisdiction of the federal courts); (2) Rubenstein,  p. 286 (holding that persons who are stateless may not invoke the alienage jurisdiction of the federal courts); and, (3) Mas,  p. 280 (holding that the domicile of a wife is that of the husband, but the rule is not applied when the wife is married to a non-citizenship so that her loss of an independent domicile would lead to denaturalization). To these we can add the Supreme Court’s treatment, more than a century before Citizens United thrust the matter to the attention of the public, of the corporation as not just as a person but a citizen for purposes of diversity jurisdiction. In doing so, it reversed a previous decision the words of which sketch out a vision of the corporation more in line with a Political Economy frame: “[t]hat invisible, intangible, and artificial being, that mere legal entity, a corporation aggregate.”

Other teachers may wish to emphasize the role of personal jurisdiction doctrine in raising barriers for non-wealthy litigants to secure redress for harms suffered in the workplace or because of defective consumer or occupational products. The U.S. Supreme Court increasingly has emphasized the importance of “predictability” as a procedural value in in its personal jurisdiction cases, looking at the question from the perspective of a corporate defendant that needs to plan and to know where it might be sued. The emergence of a hard-edged, bright-line test for general jurisdiction narrows the range of constitutional fora to the corporation’s “home” state. At the most basic level, the rule shifts litigation costs to the weaker party. More significantly, this rule undercuts the very rationale for general jurisdiction: its importance as a safety-valve, so that a litigant can invoke at least one U.S. forum. That option no longer is available when consumers or others are harmed by non-U.S. companies that strategically operate to avoid the requirements of specific jurisdiction and are incorporated and headquartered outside the United States. These questions are explored in Chapter 2, pp. 159–168 (and here).

Raising questions about Political Economy is compatible with the structure and scope of the 1L procedure course, even these days when the hours-allotment is a slim three or four credits in the first semester. Moreover, doing so fits comfortably with using a conventional casebook without assigning many or even any supplemental materials. It is consistent with teaching critical skills and for motivating students to become problem-solvers. And it is essential to forestall the dangerous trend of leveraging courts and law not only against those who are without power and wealth, but also in ways that make private power—to borrow from President Franklin D. Roosevelt—“stronger than their democratic State itself.” I welcome hearing thoughts and suggestions from other professors of Civil Procedure about how to develop this project.

Helen Hershkoff is the Herbert M. and Svetlana Wachtell Professor of Constitutional Law and Civil Liberties at New York University School of Law.

2 responses

  1. Pingback: Links 12/6/18 – USA All Americans NEWS™

  2. Pingback: 1LPE Round-up « Law and Political Economy

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