Democracy, Civil Litigation, and the Nature of Non-representative Institutions
64 Pages Posted: 2 May 2023 Last revised: 15 Jun 2023
Date Written: April 26, 2023
With democratic governance under threat in the United States and abroad, legal scholars have endeavored to defend the institutions considered integral to a well-functioning democracy. According to an increasing number of civil procedure scholars, civil litigation should be included among those institutions, with many contending that litigation performs several important “democratic” functions.
This Article draws on political theory to explicate and evaluate this emerging democratic defense of civil litigation, as well as to situate the defense in the broader context of democratic argumentation about non-representative institutions in legal theory. Democracy is just as complex as any other normative concept, and that complexity pervades the democratic defense of civil litigation. Not only do civil procedure scholars identify several distinct democratic functions that litigation ostensibly serves; they also rely (often implicitly) on several distinct conceptions of democracy to draw those connections. More specifically, when the democratic defense runs up against litigation’s many incontrovertibly non-majoritarian features, proponents tend to resort to what political theorists have described as less political conceptions of democracy—that is, conceptions that see democracy less as a procedure for negotiating persistent disagreements between competing segments of society through ongoing contestation over political power and more as a set of social activities further removed from the exercise of political power or even a set of substantive moral ends to be imposed via that power once and for all.
This Article argues that such depoliticization of democracy has considerable drawbacks in the civil justice context. In recent decades, the institution of civil litigation has come under assault from both the right and left. Yet the less political conceptions of democracy underwriting significant facets of the democratic defense are unlikely to vindicate litigation against those attacks. For, in order to assimilate litigation to other, representative institutions, the democratic defense must subsume disparate, often-competing values under the single heading of “democracy.” Such conflation not only elides the many inevitable tradeoffs between those values, but also distracts us from what’s distinctive and most valuable about litigation—what functions litigation can perform but other political institutions can’t. And without a clear sense of litigation’s unique role in our political system, defenders of litigation will struggle to parry calls for civil justice “reform,” which on a wide range of policy issues—from arbitration to aggregate litigation to private enforcement—often posit a set of alternative institutions that supposedly serve the same purposes as litigation, only better.
In its tendency to depoliticize democracy, the democratic defense of civil litigation reflects similar trends in recent legal theory. This Article shows how scholars of both private and public law increasingly invoke democracy to justify the work of non-representative institutions such as courts and administrative agencies but rely on less political conceptions of the ideal to do so. Such depoliticization risks obscuring the institutions’ most distinctive normative contributions, as well as the inevitable conflicts between those contributions and other fundamental values, including a democratic commitment to popular sovereignty. Absent consensus about how to resolve such conflicts, the best we may be able to do is to render non-representative institutions such as litigation more accountable to other, representative institutions that are better situated to negotiate persistent disagreements about fundamental values. Democratic defenses of litigation and other non-representative institutions, by contrast, attempt to account for those institutions’ non-majoritarian qualities at the steep price of taking much of the disagreement—and thus much of the politics—out of democracy.
Keywords: democracy, civil procedure, litigation, private law theory, judicial review, administrative law
Suggested Citation: Suggested Citation