AUTHOR. Senior Lecturer in Law, Letters, and Society in the College and Lecturer in Law, University of Chicago Law School. I am grateful for comments from Emily Buss, Zach Clopton, Justin Driver, Ben Eidelson, Bonnie Ernst, Lee Fennell, Amanda Frost, Maggie Gardner, Abbe Gluck, Daniel Hemel, Scott Hemphill, William Hubbard, Aziz Huq, Emma Kaufman, Ariel Jurow Kleiman, Liz McCuskey, Lou Mulligan, David Noll, Richard Re, Judith Resnik, Ezra Rosser, Shayak Sarkar, Margo Schlanger, Liz Schneider, Brian Soucek, Ben Spencer, Adam Steinman, and Charles Tyler. Katherine Blankinship provided steadfast research assistance. Thanks also to the organizers and participants of the American University Washington College of Law's Poverty States conference, the annual Law & Society meeting, the Civil Procedure Workshop at the University of Arizona James E. Rogers College of Law, and the Liman Colloquium at Yale Law School as well as the law faculties at the University of California-Davis, the University of Chicago, the University of Florida, George Washington University, Indiana University, the University of Maryland, the University of Michigan, Northwestern University, the University of Richmond, and the University of San Diego for allowing me to workshop earlier versions. Finally, I thank Hannah Schoen and the other editors of the Yale Law Journal.
ARTICLE CONTENTS INTRODUCTION 1481 I. IN FORMA PAUPERIS PRACTICE 1485 IN FEDERAL COURT A. The History of In Forma Pauperis 1486 Status in Federal Court B. The Benefits of In Forma Pauperis Status 1492 C. The Flaws of Federal In Forma 1495 Pauperis Practice 1. Summary Statistics of the In Forma 1496 Pauperis Forms 2. The Arbitrary Nature of Federal In Forma 1497 Pauperis Practice 3. An Inefficient Procedure for Judges 1500 4. An Invasive Procedure for Litigants 1503 5. A Faulty Status Quo for the Federal Courts 1505 II. OTHER SOURCES OF POVERTY PLEADING 1507 A. Means Tests in Federal Law 1507 B. In Forma Pauperis Practice in State Courts 1510 III. TOWARD A COHERENT IN FORMA 1514 PAUPERIS STANDARD A. Designing a National In Forma Pauperis 1515 Standard for the Federal Courts B. Adopting a National In Forma Pauperis 1521 Standard for the Federal Courts 1. Congress 1522 2. The Judicial Conference 1523 3. U.S. District Courts 1525 IV. BOTTOM-UP PROCEDURE 1526 A. A Different Perspective 1526 B. Whither Civil Procedure? 1530 CONCLUSION 1537 APPENDIX A: IN FORMA PAUPERIS PRACTICE IN U.S. DISTRICT COURTS AND STATE COURTS 1539 APPENDIX B: PROPOSED IN FORMA 1565 PAUPERIS FORM INTRODUCTION
In a nation racked with persistent poverty and increasing inequality, it is worth asking how the federal courts encounter and accommodate litigants with limited means. Almost forty million Americans live below the federal poverty level. (1) Forty percent of American adults report not having the savings to cover a $400 emergency--the same amount it costs to file a case in federal court. (2) Yet, these financial realities for low-income litigants collide with a civil justice system that demands that those individuals act as their own advocates. The federal courts constitute an indispensable forum for low-income individuals. They hear thousands of cases involving alleged unlawful practices by the employers and government actors with whom poor people interact on a regular basis. Indeed, employment discrimination, police misconduct, and disability determinations make up a significant portion of the federal question cases in the federal courts. (3) Given that American civil justice largely relies on private enforcement of fundamental rights, we should not lose sight of procedural rules that only apply to poor litigants. Procedural rules may impinge on the ability of litigants to vindicate their claims, especially those arising under the Constitution and the laws of the United States. Mindful of those stakes, this Article works through the first rule that poor people encounter when they file a lawsuit in federal court.
Since 1892, Congress has authorized the federal courts to grant in forma pauperis (IFP) status to litigants who submit a financial affidavit declaring their poverty. Yet, the regime now in place--governed by 28 U.S.C. [section] 1915(a) and Federal Rule of Civil Procedure 83--affords federal judges broad discretion to determine whether a litigant qualifies for IFP status. As a result, the manner in which people plead poverty in federal court varies dramatically across the federal system. This pleading structure burdens judges and litigants, and it differs from the poverty determinations conducted by federal agencies, state agencies, and state courts.
This Article builds its argument from the ground up by tracing the disparate IFP practices of the United States' ninety-four federal trial courts. Drawing on both federal law and state-court practice, the Article proposes a coherent IFP standard. It connects this inquiry with broader debates in procedure, including those around access to justice and the future of civil adjudication. More broadly, this Article typifies what one might call bottom-up procedural scholarship. Such an approach will often prioritize poor litigants over wealthy ones, trial courts over appellate, and routine adjudications over precedent-shattering rulings.
The Article begins by identifying and documenting the range of federal in forma pauperis practice. In granting IFP status, the federal court waives the initial filing fee and sometimes confers other benefits on the litigant, including assistance effectuating service of process and even appointed counsel. (4) Beyond these concrete benefits, IFP status instantiates the federal system's purported commitment not to let a litigant's indigence interfere with the merits of that litigant's claims. However, 28 U.S.C. [section] 1915(a), as well as the tradition of local rules and court practices enabled by the Federal Rules, gives judges significant discretion in determining whether a litigant's poverty warrants IFP status. That discretion, in turn, has produced a dizzying degree of variation across and within the ninety-four U.S. district courts.
In forma pauperis motions do not equip federal judges with the tools to accurately assess a movant's poverty, (5) and federal courts differ in the information they collect about litigants' financial situations. Part I demonstrates how this lack of uniformity across and within courts creates disparate practices in the federal judiciary. (6) The coding summarized in Part I highlights these differences, with many forms requiring more information than necessary.
Also, few federal courts provide back-end guidance for judges presented with an in forma pauperis motion. With no standard ex ante, judges are left to determine how much income is too low, how many expenses are too high, and how many assets are too few. (7) Moreover, computing a movant's income and expenses is arithmetic and does not demand the skills of an Article III judge.
As for the litigants, the federal courts unnecessarily ask poor people to plead too much to prove their poverty. Some of the IFP forms betray a wealthy person's conception of income--asking would-be litigants to appraise their jewelry and artwork, to divulge their stock holdings, and to itemize their inheritances. A poor litigant should not need to plead the make and model of any vehicle in their possession or disclose their educational attainment. A judge need not require, as one of the forms used by the Judicial Conference of the United States does, a litigant to list income from a dozen categories, fifteen types of expenses, and ten types of assets. Such a cumbersome, standardless pleading system needlessly burdens judges and litigants.
Part II disproves that this degree of unreliability is inherent in poverty pleadings. Indeed, one cannot fully appreciate the flaws in federal practice until surveying the landscape of poverty determinations outside of the federal courts. By comparing federal IFP determinations to other poverty determinations, the Article illustrates that federal practice need not be so arbitrary. Federal and state agencies routinely determine the poverty of applicants. (8) These agencies apply means tests to determine whether an individual or family is eligible for government assistance, including Medicaid, food assistance, and welfare. (9) Federal courts should follow suit. To be sure, it is unusual to liken federal courts to welfare agencies, but in this context, both institutions are engaged in an identical enterprise--attempting to distribute a means-tested benefit in a rational, efficient manner. The constitutional origins and distinct functions of courts and agencies should not prevent us from comparing how they make those poverty determinations.
For those who would prefer to compare federal courts only to other courts, state court systems serve as ready-made analogs. State courts use a variety of mechanisms to make poverty determinations. (10) In fact, these courts use rules similar to those of human-services agencies that the federal courts should also adopt. For example, some state courts already use bright-line income tests tied to the federal poverty guidelines and adjunctive eligibility (i.e., qualifying for one program as a presumption of qualification for another). These agency and state-court practices highlight the rudimentary nature of our federal system.
Part III draws on these lessons from federal law and state-court practice to propose a coherent federal IFP standard. This national standard would not only bring IFP status in line with federal law and state-court practice but also better promote access to justice for poor people. It would build on the lessons of other poverty determinations by clarifying an income threshold and allowing for adjunctive eligibility. (11) Federal judges could save valuable time by streamlining this fairly ministerial function, and the new IFP standard would preserve their discretion...