In discussing federal rulemaking, civil procedure teachers have long pointed out prevailing norms of impartiality and neutrality. But most understand that the promise of neutral rules, as applied, often falls short of these aspirational goals. This realization prompts students to think beyond case outcomes and to reflect on the interests that courts serve by their judicial decisions. Commentators have analyzed the Court’s embedded political preferences, centering on the Court’s pro-corporate and anti-plaintiff bias that denies access to justice and “closes the courthouse doors.”
In Neoliberal Civil Procedure, Luke Norris pursues this enquiry, setting forth a sophisticated explanation grounded in neoliberal economic theory. His general themes and conclusions are the same as the “access to justice” crowd: that the way in which the Court has interpreted procedural rules has placed barriers to citizens seeking to vindicate rights in civil litigation. Norris endeavors to move the discussion beyond the simple incantation that the Court is pro-corporate and anti-plaintiff. Instead, Norris explains how neoliberalism has become a prevailing model in the Court’s application of procedural rules.
According to Norris, neoliberalism describes the revival of doctrines of classical economic liberalism. Neoliberalism is based on market-models of efficiency and autonomy, market arrangements, and the reduction of citizens to consumers and atomistic individuals rather than social agents. This market-model exceptionalism conflicts with democratic values such as distributive fairness, workplace security, economic opportunity, civic equality, and community solidarity. Neoliberalism is hostile to questions of power, structure, or vulnerability, and sidelines issues of coercion, subordination, and domination. It seeks to construct a law and politics that shields market relations from democratic control. Consequently, the infusion of neoliberalism into procedural decisions has made it increasingly difficult for plaintiffs to enforce regulatory laws such as antitrust, consumer protection, and anti-discrimination statutes.
Norris applies this theory of neoliberalism to four parts of the Court’s procedural jurisprudence: summary judgment, pleading, arbitration, and class actions. These decisions represent the low-hanging fruit for critics of a corporate-leaning Court; Michael Vitiello’s Animating Civil Procedure used the same examples to describe the Court’s pro-corporate bias. Norris examines these decisions through a neoliberalism lens.
Norris’s star example of neoliberalism at work is the Court’s 1986 summary judgment decision Matsushita Electric Industrial Co. v. Zenith Radio Corp., an antitrust case. Norris characterizes the decision as “perhaps the zenith of procedural interpretation that is market naturalizing, allowing judges to bring economic theory into their decision-making to construct market rationality.” In granting the defendant’s motion, the Court asked whether the plaintiff’s claim made economic sense. The Court constructed what it thought was plausible through the lens of efficiency, focusing on Chicago-school economic theory about how rational, profit-maximizing companies act. This increased plaintiffs’ procedural burdens in antitrust cases.
In the pleading arena, Norris finds neoliberalism infusing 2007’s Bell Atlantic v. Twombly, another antitrust decision. In dismissing the plaintiffs’ case for a lack of plausible pleading, “the Court again constructed its own view of efficient market rationality . . . and used that view to naturalize market behavior and insulate it from regulatory litigation.” In addition, the Court’s focus on discovery costs and burdens on institutional defendants was consistent with a market-efficiency rationale. Norris notes that while Matsushita represented a “foray into economic theory,” the Court there had relied on a well-developed record. The Twombly Court decided the motion on a record bereft of evidence. The Court “inserted itself . . . into reasoning about what was plausible within the market and whether market relationships evinced anticompetitive conduct at the pleading stage.” In dissent, Justice Stevens argued that the Court’s decision would invite lawyers to debate economic theory to conclusively resolve antitrust suits without any evidence. Needless to say, numerous critics piled on Twombly for its anti-plaintiff impact.
Regarding arbitration, Norris discusses the Court’s 1985 Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc. decision. That litigation asserted claims under the Sherman Act and involved a general arbitration clause. The Court interpreted the arbitration clause to include statutory rights and declined to allow the litigation to proceed in court. Norris suggests that Mitsubishi illustrates the Court’s lack of concern about power and parity: a lack that the Court would repeatedly manifest in many subsequent arbitration decisions.
Norris identifies two class action decisions reflecting the neoliberal approach to judicial decisionmaking. Norris’s prime example is Judge Posner’s 1995 Seventh Circuit decision in In re Rhone-Poulenc Rorer Inc. overturning a class certification, a decision infused with economic concepts such as settlement blackmail, which Norris contends persisted to impose hurdle after hurdle on class action plaintiffs. The Court’s 2011 Wal-Mart Stores v. Dukes demonstrates that the Court “trains its eye on the individual citizen consumer and thwarts and dampens collective or aggregate litigation.”
Norris speculates that this neoliberal age may be another passing civil procedure era. Understanding the logic and pull of neoliberalism puts reformers in a better position to effectuate change. But resisting the pull of neoliberalism “would require a profound shift, a democratic reordering that is unlikely to occur without a new governing coalition.” Norris rather grandiosely suggests that civil procedure for a revitalized democratic regulatory era would shift the normative focus beyond efficiency, involve rethinking the governmental role as a procedural facilitator, and develop a politics of procedure. This article is worth reading for the insight he brings to procedural developments and for the numerous debatable points and interpretations he suggests.
Interesting.
Yet, all this with all due respect, has almost nothing to do with judges and judicial discretion, nor, with democracy.
The respectable author of the study presented is convinced that social issues of fairness etc… are conflicting with democratic principles. Nothing to do with it. For democracy means, rule of law. Not capricious and arbitrary discretion of one ruler or dictator, but, the law, rule of law, which reigns supreme.
As such, judges, must imply the law. Not their capricious wishes. The starting point, must always be, the law and the wording of the law. This is the meaning of democracy (in sum or in essence right now).
So, judges, can’t consider social issues or theories, while ignoring the law. So, let’s take the case of Wall Mart:
Speaking of access to court, the justices, couldn’t ignore, the right of Wall Mart, to litigate on individual basis. Why would they pay overwhelmingly, without specific calculation ? For, this is the law. I quote (from the Syllabus):
“Once a plaintiff establishes a pattern or practice of discrimination, a district court must usually conduct “additional proceedings … to determine the scope of individual relief.” Teamsters v. United States, 431 U.S. 324, 361, 97 S.Ct. 1843, 52 L.Ed.2d 396. The company can then raise individual affirmative defenses and demonstrate that its action was lawful. Id., at 362, 97 S.Ct. 1843. The Ninth Circuit erred in trying to replace such proceedings with Trial by Formula. Because Rule 23 cannot be interpreted to “abridge, enlarge or modify any substantive right,” 28 U.S.C. § 2072(b), a class cannot be certified on the premise that Wal-Mart will not be entitled to litigate its statutory defenses to individual claims. P. 2561.”
Or concerning discrimination, I quote:
” On the facts of this case, the conceptual gap between an individual’s discrimination claim and “the existence of a class of persons who have suffered the same injury,” id., at 157-158, 102 S.Ct. 2364, must be bridged by “[s]ignificant proof that an employer operated under a general policy of discrimination,” id., at 159, n. 15, 102 S.Ct. 2364. Such proof is absent here. Wal-Mart’s announced policy forbids sex discrimination, and the company has penalties for denials of equal opportunity. Respondents’ only evidence of a general discrimination policy was a sociologist’s analysis asserting that Wal-Mart’s corporate culture made it vulnerable to gender bias. But because he could not estimate what percent of Wal-Mart employment decisions might be determined by stereotypical thinking, his testimony was worlds away from “[s]ignificant proof” that Wal-Mart “operated under a general policy of discrimination.” Pp. 2553-2554.”
End of quotation:
So, commonality in class actions, demand that each individual, would suffer and be compensated on the same merits. But, if not, or can’t be proven, then, one judge, can’t do it generally speaking. Wall Mart has the right to litigate on it. They had for example clear and manifestly so, a policy that forbids sex discrimination. The fact, that maybe in one branch, one manager, made a tort of some sort, can’t be implied overwhelmingly, indiscriminately on Wall Mart as a whole or as a firm.
Finally, yes, some judges or justices, claim that one of the major constitutional principles in the US constitution, is free markets. Efficiency. Manifestly so. But, it is then, constitutional principle. Like free speech, or, fourth amendment. Notwithstanding, they would follow the law, the constitution, not something else with all due respect. They don’t consider it, as personal issue, to be introduced to their rulings.
Thanks