A diamond in the rough: trans-substantivity of the Federal Rules of Civil Procedure and its detrimental impact on civil rights.

AuthorMalveaux, Suzette
PositionIntroduction into II. Procedure Disproportionately Harms Employment Discrimination and Civil Rights Claims B. Class Actions, p. 455-490

Table of Contents INTRODUCTION I. TRANS-SUBSTANTIVITY II. PROCEDURE DISPROPORTIONATELY HARMS EMPLOYMENT DISCRIMINATION AND CIVIL RIGHTS CLAIMS A. Pleadings 1. Excessive Subjectivity 2. Informational Asymmetry 3. Greater Dismissals of Employment Discrimination and Civil Rights Cases a. Empirical Support b. Practitioner Experience and Judicial Approach B. Class Actions 1. Heightened Commonality 2. Restrictive Certification Options for Back Pay Relief 3. Higher and More Hurdles to Class Certification C. Other Procedural Barriers 1. Summary Judgment 2. Sanctions 3. Discovery III. RE-LEGITIMIZING TRANS-SUBSTANTIVITY A. Judicial Realignment with the Rules' Underlying Principles B. Rulemakers ' Analysis of Procedural Disparate Impact on Substantive Rights C. Congressional Corrective Legislation CONCLUSION INTRODUCTION

The Federal Rules of Civil Procedure are celebrating their seventy-fifth anniversary this year. On this diamond anniversary, the celebration is tempered by the uncomfortable truth that for many individuals, the Rules are stacked against them. For workers and others challenging discrimination through the civil litigation system, the Rules appear less like diamonds, and more like diamonds in the rough.

The Federal Rules of Civil Procedure apply to all federal civil actions in the same manner, regardless of the substantive right being pursued. In other words, the Rules are trans-substantive. (1) This principle has been a central tenet of the civil litigation system since the Rules' enactment in 1938." However, this one-size-fits-all approach to process has been increasingly questioned in a society growing in complexity, size, and specialization. Developments in the modern civil litigation system have led to the devolution of this approach.

Moreover, it is well established that the Rules have a negative disparate impact on certain substantive areas of law and types of cases. The language, interpretation, and application of the Rules reveal an undeniable pattern of substantive-specific impact. After three-quarters of a century, there are enough data points to support this pattern. The blow that employment discrimination and civil rights claims have taken at the hands of procedural law lays bare any pretense that procedural rules operate in a neutral fashion. There are numerous pressure points and a myriad of ways that such claims have disproportionately suffered.

The record is replete with examples of how the procedural rules, and their application and interpretation, have taken a toll on workplace discrimination and civil rights claimants vying for court-entry and merit-based decisions. For example, as an initial matter, it has become harder for claimants to enter the federal court system. The Supreme Court has interpreted Rule 8's pleading requirement in such a way that it forces complaints to clear a higher bar to survive dismissal. (3) The greater risk of dismissal compromises enforcement, deterrence, and the right to be heard. Depriving access to the civil litigation system undermines fairness, due process, and the well-established preference that cases be decided on the merits rather than on procedural grounds.

Another example of disproportionate hardship for claimants challenging discriminatory practices is the restrictive application and interpretation of Rule 23, (4) the modern class action rule. Far from simply being an intricate joinder device, this aggregation method is designed to empower everyday people to promote and enforce public policy. The Court's heightened commonality standard (5)--like the pleading one--and stricter back pay threshold (6) threaten court access and a formal resolution on the merits, but on an even grander scale. The denial of class certification--especially in cases involving small value claims and poor claimants--can mean the denial of relief altogether for such litigants and the underenforcement of anti-discrimination statutes more generally.

Even when employees and others are successful at class certification, their success is often short-lived. No sooner have claimants been approved of as a class, than the defendant mounts an interlocutory challenge to certification--one it will likely win.

But plaintiffs permitted to seek class certification are the fortunate ones. Arbitration agreements that compel employees to forgo class actions--along with other procedural protections--are increasingly common in employment contracts and enforced by the courts. Employers not able to litigate their way out of class actions may contract their way out instead. And if class actions are the only realistic way the law will be enforced, employers have effectively contracted for immunity. In sum, the elevated class action hurdles jeopardize law enforcement, employer deterrence, and employee compensation for Title VII cases.

Other examples of procedural mechanisms that haven fallen more harshly on civil rights litigants include a liberalized summary judgment standard, (7) erosion of the breadth and depth of discovery, harsher application of Rule 11, and more rigorous treatment of expert testimony. All of these make it easier for defendants to dispose of cases before a determination on the merits.

In sum, since the Rules' origination, and certainly over the last quarter-century, there has been a growing shift away from court access, (8) particularly for civil rights and workplace discrimination cases. (9) This access to justice problem stems from numerous developments, including: a higher pleading standard; stricter class certification; greater deference to arbitration agreements; and more liberal grants of summary judgment. (10) While any one of these developments alone would present a formidable challenge to plaintiffs, the confluence of them is tantamount to a sea change.

It may be true that some procedural rules--purely ministerial in nature--will affect cases alleging different substantive rights unequally. This is not surprising, nor inherently wrong. What is wrong is when the burden falls consistently and more heavily on a distinct class of claims and claimants--as it does for employment discrimination and civil rights claims and their litigants. That wrong is exacerbated when the substantive claims and their proponents are those society has decided--as a policy matter--to afford special consideration and protection because of centuries of historical and modern subordination. Given the centrality of rule trans-substantivity in the civil litigation system and the open secret that it is significantly flawed--because of its unfair impact on workplace and civil rights claims--it is time for a change.

Part I of the Article briefly describes the evolution, justifications, and critiques of rule trans-substantivity. Part II explains how the language, interpretation, and application of the Rules have undercut court entry and merit-based decisions for those alleging employment discrimination and civil rights violations. Part III contends that the legitimacy of trans-substantivity is in jeopardy and proposes some ways that the bench, bar, and public may reconcile a trans-substantive process system with a robust democracy.

  1. TRANS-SUBSTANTIVITY

    Trans-substantivity--the principle that the federal procedural rales apply to all cases regardless of the underlying substantive rights at issue"--has been a fundamental principle of the civil litigation system since the Rules' origination in 1938. (12)

    From their inception, the Rules were intended to facilitate resolution on the merits. (13) Process yielded to substance and the Rules were merely the vehicle through which important policies were enforced and democracy worked. (14) The purported neutrality of the Rules gave license to court-supervised rulemaking, which occurred outside of the formal political process. (15) Promulgation of rales evenly applied across substantive areas enabled the Supreme Court rather than Congress to engage in rulemaking without offending the democratic process. (16) Thus, trans-substantivity legitimized the allocation of rulemaking power to the courts and substantive policy-making power to the legislature. (17) And the Rules Enabling Act of 1934 checked this power-sharing arrangement by forbidding courts from enacting rules that would "abridge, enlarge or modify any substantive right." (18)

    The drafters of the Rules deliberately chose a trans-substantive civil litigation system. (19) They sought to simplify a system that had been mired in writs dictating different procedures for different causes of action in the common law courts. (20) With the merger of common law and equity courts, the rigidity and formality of the writs were abandoned. (21) In their stead, all courts acquired...

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