The Concept of Equality in Civil Procedure

69 Pages Posted: 25 Aug 2001

Date Written: August 2001

Abstract

The Article fills a void in the procedural literature by providing the first sustained treatment of the complex role that equality plays in procedural thought. The Article's central message is that there is not one "procedural equality" but rather a host of "procedural equalities." I identify and explore three different forms of equality that are central organizing principles of procedural justice. The Article creates a new typology of procedural equalities.

The Article's second primary contribution is that it demonstrates how our procedural systems contain an intricate web of architectural decisions that promote procedural equalities. The Article discusses numerous procedural rules and approaches that contribute to the forms of equality that are identified. Finally, by carefully delineating the meaning of equality in various procedural domains, the Article provides an explanation for the Equal Protection Clause's impotence in the field of procedure - namely, that constitutional equality and these three procedural equalities are not the same thing. Although my conclusion is that constitutional adjudication is generally not a successful, nor even germane, method for achieving procedural equalities, the Article nonetheless contains a normative agenda. It concludes by providing policy suggestions to two sets of institutional actors - crafters of alternative dispute resolution systems and legislators considering procedural rules.

Suggested Citation

Rubenstein, William B., The Concept of Equality in Civil Procedure (August 2001). Cardozo Law Review, Vol. 23, 2002 Forthcoming. Available at SSRN: https://ssrn.com/abstract=281271 or http://dx.doi.org/10.2139/ssrn.281271

William B. Rubenstein (Contact Author)

Harvard Law School ( email )

1545 Massachusetts
Areeda 323
Cambridge, MA 02138
United States
617-496-7320 (Phone)

HOME PAGE: http://www.billrubenstein.com

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