The Concept of Equality in Civil Procedure

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.