Is the Arc of Procedure Bending Towards Injustice?

Abstract

With the Court’s ideological shift to the right during the twenty-first century, legal observers have noted not only the Court’s restrictions of substantive rights, but concomitant constraints on procedural law. Surveying the Court’s procedural pronouncements of the past two decades, procedure scholars have developed a grim narrative centered on themes of the closing of the courthouse doors and denial of access to justice to claimants. Regarding the arc of procedural justice, academic scholars advance an unrelenting negative portrait of a pro-corporate Court determined to thwart substantive and procedural justice. And certainly, it is easy to assemble an illustrative litany of anti-consumer, anti-plaintiff decisions that support this narrative.

Is the arc of procedure increasingly bending towards injustice? Is there an alternative narrative to the prevalent pessimistic story voiced by procedure scholars? This article explores whether, during the period of the dark narrative, the Court’s procedural jurisprudence has accomplished anything positive. The article suggest that, in the procedural arena, sometimes the Court gets things right, sometimes the Court remedies procedural problems, and sometimes the Court recognizes its limits and exercises restraint in fashioning procedural rules. Additionally, the Advisory Committee on Civil Rules, whatever else its faults and limitations, has fashioned admirable rule changes in this era. Finally, the article suggests that contrary to the Court’s most hyperbolic detractors, the sky is not falling in practical application of many criticized procedural decisions.

Keywords: procedure, procedural justice, class actions, due process, procedural due process, institutional reform litigation, Advisory Committee of Civil Rules, closing courthouse doors, denial of access to justice, personal jurisdiction, pleading, discovery, summary judgment, transfer of venue, arbitration