The Political Economy of Civil Procedure

Catalog description

When you first encounter civil procedure in your 1L fall quarter, it may seem dry and technical. If you take advanced procedure or complex litigation or do a summer clerkship in litigation, you will move on to considering the more interesting strategic use of procedural rules. But, with so much to learn so fast there often isn't time to talk about the political economy dimension of the rules. Moreover, for reasons we will discuss in this seminar, the rules are conventionally presented as neutral, notwithstanding the fact that they determine who gets access to court, for what types of claims, and with what sorts of potential outcomes. In fact, the civil procedure rules have huge distributional consequences: some sorts of claims and claimants are advantaged and some are disadvantaged by them. Not surprisingly, then, the rule drafting process is dominated by interest group politics and in recent decades, key U.S. Supreme Court decisions interpreting civil procedure rules have been shaped by the justices' ideological preferences. At the same time, the procedural rules affect the efficiency of the litigation process: how fast disputes are resolved and at what cost, which are important to litigants on both sides of the v. Hence, there are non-ideological as well as ideological rationales for certain rules and rule interpretations. In this seminar, we will consider the distributional consequences of the rules that shape the key stages of the civil litigation process, focusing on the pretrial stage at which most civil disputes are resolved. We will read key rules, selected court decisions interpreting their application, and commentary on interpretation (some empirically grounded), focusing on political economy perspectives. Where source materials exist, we will discuss interest group lobbying for and against rule changes and who won and lost these interest group…