Civil Procedure's Partial Rule of Law

Abstract

With the rule of law widely thought to be experiencing a “crisis,” the institution of civil litigation has come under renewed scrutiny. Recent developments have led some commentators to portray litigation as not just a victim, but an agent, of the rule-of-law crisis. At the same time, even as some notable instances of litigation appear to have threatened the rule of law, others have seemingly vindicated it, reinforcing a longstanding association between the institution and the ideal.

This Article seeks to account for civil litigation’s ambiguous relationship with the rule of law. The ambiguity, this Article contends, owes to a more fundamental, yet underappreciated, equivocation in our understandings of both litigation and the rule of law regarding the commitment to impartiality in law enforcement. On the one hand, the rule of law is traditionally assumed to demand impartiality—a strict adherence to public rather than private considerations—in law enforcement, and litigation, like all other legal institutions, aspires to impartial decisionmaking. On the other hand, while litigation is reputed to have myriad benefits for the rule of law, it turns out that those benefits are realized largely through private parties who display significant partiality—a preference for their own personal interests, relationships, and beliefs over collectively determined public values—as they exercise the various procedural powers that the civil justice system affords them. Widespread concerns about litigation “abuse” and “vigilante” lawsuits implicitly recognize the attendant risks for legality but fail to correctly identify their source in litigation’s fundamental institutional structure. Litigation’s rule-of-law bona fides, in short, depend on a significant degree of partiality in law enforcement, yet that very reliance on partiality also threatens to compromise the impartial administration of (civil) justice, itself a requirement of the rule of law.

By simultaneously embracing and scorning partiality in law enforcement, civil procedure reveals a series of conflicts within the rule-of-law ideal, which, in turn, necessitate making tradeoffs between different aspects of legality. One can envision various strategies for mediating those conflicts, but each has significant drawbacks. Civil litigation is, from a rule-of-law perspective, Janus-faced. And, given that institutional ambivalence, we should reconsider the hegemony of the impartiality ideal—as well as the concomitant priority of public law over private law—in standard theories of both civil litigation and the rule of law.

Keywords: civil procedure, litigation, rule of law, legality, civil recourse, private law theory, legal theory