Distributing Civil Justice

Distributing Civil Justice

MATTHEW A. SHAPIRO*

With growing economic inequality, questions of distributive justice have

become increasingly prominent in legal scholarship, particularly public law

scholarship. Civil procedure scholarship has been no exception, tradition-

ally addressing such questions under the heading of “access to justice.”

And yet, despite the ubiquity of the phrase, discussions of access to justice

have tended to focus almost exclusively on how procedural resources and

opportunities should be distributed and, accordingly, who should receive

any given share of those resources and opportunities. Much less attention

has been paid to what, exactly, is being distributed—which specif‌ic goods

access to justice actually comprises. Perhaps because of this vagueness,

proponents of access to justice have coalesced around a fairly stable set of

policy positions on a wide range of procedural issues.

This Article shows that apparent consensus to be much less secure

than scholars commonly assume. Only by abstracting from the specif‌ic

goods associated with access to justice can scholars achieve such wide-

spread agreement about which procedural rules and policies accord with

distributive justice. In fact, scholars allude to multiple distinct goods

when advocating broad access to justice. Though often treated as inter-

changeable or even synonymous, those goods, once distinguished, entail

potentially conf‌licting implications for some of the doctrinal and policy

issues that currently preoccupy civil procedure scholars, complicating

the standard access-to-justice position on each one. Whether a particular

policy promotes access to justice and satisf‌ies the demands of distributive

justice depends on which specif‌ic goods we’re trying to facilitate access

to. The unadorned concept of access to justice doesn’t have the fully

determinate, unidirectional policy valence that many scholars assume it

does.

* Assistant Professor of Law, Rutgers Law School. © 2021, Matthew A. Shapiro. For helpful

comments and conversations, I thank Christian Burset, Brenner Fissell, Maria Glover, Olati Johnson,

Alexi Lahav, Nancy Leong, John Oberdiek, Dave Pozen, Emily Stolzenberg, and Alec Walen, as well as

Shaun Ossei-Owusu, Karen Tani, and the students in their Spring 2021 Law and Inequality Seminar at

the University of Pennsylvania Carey Law School and participants in the Eleventh Annual Junior

Faculty Federal Courts Workshop at the University of Arkansas School of Law and the Fifth Annual

Civil Procedure Workshop at the University of Texas School of Law. I am also grateful to Rutgers Law

School and the Maurice A. Deane School of Law at Hofstra University for f‌inancial support; to Palmer

Sealy (Hofstra J.D. Class of 2021) for valuable research assistance; and to Will Baxley, Hannah Flesch,

Lilith Klein-Evans, Adam Mitchell, Matthew Nussbaum, Lane Shadgett, and their fellow editors of The

Georgetown Law Journal for their outstanding editorial work. This Article won the Association of

American Law Schools 2021 Scholarly Papers Competition.

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The problem, moreover, runs much deeper than just an ambiguity

about the aims of civil justice. For the different goods associated with

access to justice can be traced to different—and often conf‌licting—

functions of the modern liberal state. Such conf‌licts are fundamental,

going to the core of liberalism, and so are no more likely to be def‌ini-

tively resolved in civil procedure than they are in any other context. That

being the case, we should expose and acknowledge the conf‌licts between

different procedural (and political) goals and restructure procedural

rulemaking institutions to better negotiate them, rather than imagine that

blunt appeals to access to justice alone can determine civil procedure’s

proper response to increasing economic inequality. We shouldn’t expect

the task of determining the legal implications of economic inequality to

be any more straightforward—or any less contentious—in civil proce-

dure than it has been in public law. And public law, for its part, may end

up having to make some of the same kinds of diff‌icult trade-offs that civil

procedure scholars have been loath to confront.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1475

I. ACCESS TO WHAT? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1482

A. COURT ACCESS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1485

B. PARTY RESOURCES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1487

C. JUDICIAL RESOURCES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1490

D. DISPUTE RESOLUTION: THIN AND THICK . . . . . . . . . . . . . . . . . . . . . . . 1494

E. RIGHTS ENFORCEMENT: INDIVIDUAL AND AGGREGATE. . . . . . . . . . . . 1498

F. MAPPING ACCESS TO JUSTICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1501

II. ACCESS-TO-JUSTICE TRADE-OFFS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1502

A. ARBITRATION............................................ 1503

B. LITIGATION FINANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1509

C. AGGREGATE LITIGATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1512

D. SPILLOVER EFFECTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1515

E. TRADE-OFFS AND SCARCITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1517

III. ACCESS TO JUSTICE IN THE LIBERAL STATE . . . . . . . . . . . . . . . . . . . . . . . . 1519

A. CIVIL JUSTICE AND LIBERAL STATE FUNCTIONS . . . . . . . . . . . . . . . . . 1519

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1. Dispute Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1521

2. Rights Enforcement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1524

3. Distributive Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1526

B. MEDIATING LIBERALISM’S CONFLICTS IN CIVIL JUSTICE . . . . . . . . . . . 1533

1. Reconciliation Strategies. . . . . . . . . . . . . . . . . . . . . . . . . 1534

2. Mediating Procedural Disagreements . . . . . . . . . . . . . . . 1538

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1541

INTRODUCTION

With growing economic inequality,

1

questions of distributive justice have

become increasingly prominent in legal scholarship, particularly public law

scholarship.

2

Civil procedure scholarship has been no exception. In particular,

civil procedure scholars have long grappled with two distinct, though connected,

sets of questions regarding the relationship between economic inequality and the

civil justice system, questions that have only assumed added urgency in recent

years. One set of questions concerns how various aspects of civil procedure can

affect economic inequality—that is, the ways in which civil procedure can exac-

erbate or ameliorate economic inequality in society at large.

3

Another set of

1. For the now-canonical citation for this observation, see generally THOMAS PIKETTY, CAPITAL IN

THE TWENTY-FIRST CENTURY (Arthur Goldhammer trans., Harvard Univ. Press 2014) (2013).

2. See generally, e.g., K. SABEEL RAHMAN, DEMOCRACY AGAINST DOMINATION 2 (2017) (identifying

the concentration of economic power as “the fundamental problem of the modern economy”); GANESH

SITARAMAN, THE CRISIS OF THE MIDDLE-CLASS CONSTITUTION: WHY ECONOMIC INEQUALITY

THREATENS OUR REPUBLIC (2017) (arguing that the hollowing out of the middle class has undermined

America’s constitutional structure); Kate Andrias, Separations of Wealth: Inequality and the Erosion of

Checks and Balances, 18 U. PA. J. CONST. L. 419 (2015) (attributing government dysfunction to

increasingly concentrated wealth); Joseph Fishkin & William E. Forbath, The Anti-Oligarchy

Constitution, 94 B.U. L. REV. 669 (2014) (tracing the history of “anti-oligarchy” as a constitutional

principle); Jedediah Purdy, Neoliberal Constitutionalism: Lochnerism for a New Economy, 77 LAW &

CONTEMP. PROBS. 195, 198 (2014) (comparing “a new version of economic constitutional liberty”

embodied in recent Supreme Court decisions to the Lochner-era doctrine of laissez-faire); Bertrall L.

Ross II & Su Li, Measuring Political Power: Suspect Class Determinations and the Poor, 104 CALIF. L.

REV 323 (2016) (arguing that the poor lack adequate political power and should therefore be treated as a

protected class); Symposium, The Constitution and Economic Equality, 94 TEX. L. REV. 1287 (2016).

3. See, e.g., Owen M. Fiss, Against Settlement, 93 YALE L.J. 1073, 1076–78 (1984) (arguing that

settlement compounds “distributional inequalities”); Marc Galanter, Why the “Haves” Come Out

Ahead: Speculations on the Limits of Legal Change, 9 LAW & SOC’Y REV. 95, 95 (1974) (considering

“the possibilities of using the [legal] system as a means of redistributive (that is, systemically

equalizing) change” and the question “under what conditions can litigation be redistributive” (footnote

omitted)); Kenneth W. Graham, Jr., The Persistence of Progressive Proceduralism, 61 TEX. L. REV.

929, 948 (1983) (criticizing “the complicity of rules of procedure in fostering inequality”); Deepak

Gupta & Lina Khan, Arbitration as Wealth Transfer, 35 YALE L. & POL’Y REV. 499, 499–502 (2017)

(arguing that the Supreme Court’s arbitration jurisprudence has regressive distributive effects); Luke P.

Norris, Labor and the Origins of Civil Procedure, 92 N.Y.U. L. REV. 462, 463 (2017) (examining how

recent developments in civil procedure “ref‌lect and widen existing economic power imbalances” in

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