Substantive Equality and Procedural Justice
55 Pages Posted: 14 Apr 2016
Date Written: April 5, 2016
The Federal Rules of Civil Procedure reflect a “formal equality” approach to civil justice. Formally equal systems promote justice by treating “like cases as like.” Theories embracing formal equality norms therefore implicitly depend on the idea that identical treatment equates to fair treatment. But formal equality is not the only kind of equality. Substantive equality theorists maintain that formally identical treatment is not truly equitable unless the law looks behind the veil to identify and remedy structural barriers to equal opportunity. To substantive equality proponents, formal equality is sufficient only if the underlying population is itself sufficiently homogeneous to ensure that outcomes will not be the product of a tilted playing field.
Whatever the merits of a formal equality approach when the Federal Rules were created in the 1930s, such rigid formalism is wholly unjust now because the requisite homogeneity is absent from modern civil litigation. New causes of action, new procedural devices, and a significant expansion of the role of private enforcement have combined to create a civil litigation environment characterized by marked heterogeneity. As a result, transsubstantive procedural rules premised on the continued dominance of the 1938 “paradigm case” no longer promote substantive equality.
This overlooked reality means that federal rulemakers must embrace norms that ensure accuracy and participation rights, even if it means that the same procedural rules no longer apply across all categories of cases. In particular, rulemakers must look beyond the civil case as the relevant unit of analysis, because accuracy and meaningful participation are a function of a variety of incentives inherent in litigation, and those incentives differ by case type. In other words, the Supreme Court and the committee rulemaking process must discard rigid formal equality in favor of a substantive equality approach. This Article offers the first examination of what truly substantively neutral rules of civil procedure will require.
Keywords: Civil Procedure, Equality Theory, Transsubstantivity, Law & Economics
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