Poverty law and civil procedure: rethinking the first-year course.

• Author: Hershkoff, Helen

The administration of American justice is not impartial, the rich and the poor do not stand on an equality before the law, the traditional method of providing justice has operated to close the doors of the courts to the poor, and has caused a gross denial of justice in all parts of the country to millions of persons. (1)

This Essay explores whether and how to integrate issues of poverty and inequality into the standard first-year course on civil procedure. I do not write on an empty slate: conferences and journals have devoted time to this question, which implicates some of the foundational issues of procedural justice. (2) At least one commentator posits that civil procedure, unlike constitutional law, "is not seen as a natural hotbed of ideological controversy," and so offers a neutral territory for the exploration of social justice concerns. (3) My view is somewhat different. Precisely because civil procedure connotes a neutral framework for dispute resolution, some colleagues might see efforts to integrate a poverty perspective into the first-year course as an example of special pleading in a system that ought to value impersonality, impartiality, and the separation of law from politics. (4) The proposed approach therefore demands some justification--quite apart from social justice concerns that might motivate fellow travelers. (5)

Support for the project can be drawn from both the goals of legal education and the role of lawyers in a democratic society. First, asking students to assess the current civil justice system from the perspective of poverty and inequality comports with the basic aims of the first-year curriculum: to learn to think critically about legal arrangements and to assess dispassionately whether existing rules promote the stated goals of fairness and efficiency for all litigants. Second, placing procedural rules in a social context helps students recognize that procedural rules, like all legal rules, result from political choices that cannot be separated from social values. (6) Finally, at a time when dissatisfaction with the justice system runs high, (7) training our students to think about possible improvement is a worthy and even essential component of a law school's mission. As Liam B. Murphy explains, "the responsibility that people have in respect of justice must be to support and bring about just institutions .... Since institutions are not agents and don't actually have any responsibilities at all, it is only people who can ensure that institutions satisfy principles of justice." (8)

Part I of the Essay sets out a thematic framework for a "standard" civil procedure first-year course that connects constitutional and non-constitutional principles to concerns of poverty and inequality. Part II offers a repertoire of doctrines, cases, and statutes, largely taken from a traditional civil procedure casebook ("the Casebook"), (9) which can be used to illustrate these themes. One might legitimately question whether the formal rules of civil procedure hold any significance for the poor, given the trend toward "consensual" procedural rules, alternative dispute resolution, and a general inability of under-resourced litigants to adjudicate meritorious claims. (10) However salient this criticism, the first-year curriculum emphasizes adjudication as a public process subject to procedural rules, and I draw my examples from the traditional set of materials. Part III briefly concludes by linking the justification for the proposed approach with the broader mission of legal education.

1. USING ISSUES OF CLASS AND POVERTY LAW TO EXAMINE PROCEDURE'S CORE CONCEPTS

   Kevin R. Johnson observes, "[f]or many students, Civil Procedure is the first--and thus a very important--exposure to constitutional law in law school." (11) The civil justice system is one of the major public arenas in which constitutional questions are raised, litigated, and resolved. It is also an arena defined and framed by constitutional understandings. Examining the relation between civil procedure and wealth disparities allows students to consider the ways in which constitutional doctrine shapes the administration of civil justice and affects the legitimacy and efficiency of the processes used. United States procedure also builds on non-constitutional concepts--in particular, the adversary system and the principle of transsubstantivity (12)--that can be better understood from the perspective of poverty and inequality.

   1. Civil Procedure, Constitutional Values, and Party Wealth

      Litigation is not just a contest between two opposing private parties. It also is a state-sanctioned process that uses public money and is subject to constitutional constraints. (13) Within this public law framework, at least three important constitutional values animate civil procedure: due process, equality, and rights to association and expression. (14) Nevertheless, the civil procedure canon includes very few constitutional decisions and of these only a handful accords any significance to the effect of wealth disparities on dispute resolution processes. This absence of "constitutional civil procedure" (15) comports with the Court's general unwillingness to treat poverty as a suspect trait or to accord heightened scrutiny to wealth classifications. (16) Introducing issues of poverty and inequality into the standard course broadens students' conceptual framework and allows them to evaluate not only the operation of specific procedural rules, but also the overall design and assumptions of the civil justice system.

      1. Due Process and the Poor

         Commentators associate a "due process paradigm" with many aspects of procedural justice: access to the courts, government accountability, and individual fairness. (17) Consistent with a due process perspective, the Casebook asks the students: "What is the test of a good system of procedure? One answer is: Does it tend to lead to the just and efficient determination of legal controversies?" (18) Introducing issues of poverty and inequality into the discussion allows students to evaluate the governing paradigm and to consider ways in which it might be adapted in light of social conditions.

         Wealth clearly affects a litigant's ability to access the civil justice system, to prosecute or to defend claims, and to leverage the courts for political expression. Because due process is a flexible doctrine that looks to all facts and circumstances, doctrinal space exists for considering the effects of wealth disparities on the civil justice system and for taking positive steps to remove barriers to court access. Looking at the Court's due process cases from almost forty years ago, (19) commentators thought they saw a trend toward giving "even the economically weaker party ... a real, rather than a merely illusory, opportunity to be heard" (20)--what Hans Smit called "a potentially revolutionary development." (21) That development proved to be stillborn: the Court's approach to the Due Process Clause typically ignores the adverse effects of wealth. Instead, in determining what process is "due" in any particular case, the Court is guided by a principle of proportionality that seeks to balance three separate factors to reach an efficient result:

         First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. (22) The Court's emphasis on cost-benefit analysis arguably comes at the expense of other aims and purposes (23)--what Frank I. Michelman calls "dignity values, participation values, deterrence values, and ... effectuation values." (24) For some commentators, the Court's singular emphasis on efficiency undermines democratic principles and negatively affects the interests of under-resourced claimants. (25)

         Students may be surprised to learn that the Court does not typically apply the Due Process Clause to remedy the adverse effects of poverty on the administration of civil justice. For example, the Court has upheld filing fees that prevent a party from petitioning for bankruptcy (26) or from seeking review of an adverse welfare decision, (27) striking down court-imposed fees only when they prevent the dissolution of marriage (28) or bar review of a court determination of parental unfitness. (29) Moreover, the Due Process Clause has not been read to require the assignment of counsel to indigent defendants other than when "the litigant may lose his physical liberty ...." (30) As one commentator warns: "Increasingly, due process is returning to its individualist roots--protecting those who have property from losing it, but failing to protect those who do not have property as it is traditionally defined." (31)

      2. Equal Protection and Wealth Disparities

         The requirement of equal protection likewise provides opportunities for discussing the effect of wealth disparities on the operation of civil procedure. Justice Ruth Bader Ginsburg observes:

         "Equal Justice Under Law" is etched about the U.S. Supreme Court's grand entrance. It is an ideal that remains aspirational. Thanks in part to efforts by lawyers, race, gender, and other incidents of birth no longer bar access to justice as they once did. It remains true, however, that the poor, and even the middle class, encounter financial impediments to a day in court. They do not enjoy the secure access available to those with full purses or political muscle. (32) Inequality as an economic term embraces a variety of concepts that point to different constitutional concerns. Some commentators equate inequality with impoverishment and focus on the ways in which resource insufficiency might bar or impede a poor person from...