Producing Procedural Inequality

Abstract

Procedural rulemaking and scholarship has taken an empirical turn in the past three decades. This empirical turn reflects a surprising consensus in what is otherwise a highly divided field and an inherently adversarial system. Because procedural rules distribute legal power in society, they invariably raise questions about who should have access to courts, information, and the means to defend one’s legal rights. While debate rages about these normative commitments, procedure has developed a surprising epistemic agreement on empiricism, with its promise of rising above these competing interests with data. In procedure, the turn toward empiricism has become a strategy for avoiding contentious political questions, or at least obscuring them.
However, the dodge fails. Procedural reform and debates remain as polarized as ever. To understand why, this Article examines the use of empirical data in debates over the recent amendments to the Federal Rules of Civil Procedure on discovery, and how that reliance on data served to mask rather than reveal the reality of contemporary discovery and litigation in the federal courts. This examination illuminates that procedural reformers insistence on neutrality, and the empiricism that accompanies it, shield rulemakers from understanding the unequal effects of their Amendments, and the ways that broader social inequality are reproduced and heightened in the courts.
This Article argues that proceduralists should place the fact of conflicting interests front and center in its debates, both because our system is designed for adversarial engagement, and because the attempt to ignore conflicting interests under the guise of empiricism leaves procedural reform privileging some interests over others without public deliberation.

Keywords: procedure, Federal Rules of Civil Procedure, Discovery, Empirical Legal Studies, Inequality, Empiricism