Excerpted From: Masai McDougall, Understanding Bias in Civil Procedure: Towards an Empirical Analysis of Procedural Rule-making's Role in Continuing Inequality, 75 Rutgers University Law Review 455 (Winter, 2023) (155 Footnotes) (Full Document)


MasaiMcDougallA multitude of federal government agencies collect data on the impact of their programs across both race and gender. Our federal courts, however, do not. When one considers that the courts are arguably both the birthplace of our concept of individual rights and the last line of defense in their enforcement, the absence of data seems curious. Are we so sure that the Federal Rules of Civil Procedure lay out an even playing field for all American litigants, regardless of who they are or where they come from?

There is ample reason to believe that the Federal Rules need reform. Despite a steady stream of litigation in our federal district courts, no one appears particularly happy with the rules that drive them. Defense attorneys complain of cost and delay, plaintiffs' attorneys complain of overly restrictive pleading standards, and litigants complain that they cannot even afford a lawyer to appear.

Even after the case management reforms initiated by the Civil Justice Reform Act (“CJRA”), district courts are swamped with levels of litigation that are institutionally difficult to manage. Pilot groups are actively and constructively seeking answers to elements of this problem. While applauding this work and calling for more of it, this Article asks whether understanding the impact of the particular Rules of Civil Procedure on American minorities might provide some critical insight about the way American litigation works--and how to make it better at resolving disputes for everyone.

Taking another step, this Article asks whether the unknown impact of the Rules of Civil Procedure has any bearing on what appears to be persistent inequality across the lines of race and gender. These lines of identity, of course, delineated not only ownership of property and the full range of individual rights, but the very concept of “freedom” and “citizenship” for at least the first two hundred years of American history. By drawing on the first rules for bringing “freedom suits” to separate “servants” from “citizens” known to the common law--the precursor of the American procedural system--we may easily identify what differentiates “free” from “not free” people, as well as how procedures can affect someone's ability to enjoy that difference. This analysis allows us to take note of the basic parameters of social inequality and how that inequality may interact with rules of civil procedure.

Through the history covered by this Article, I observe that “free” people do five things in particular that ultimately form the basis of classical liberal society: (1) working and traveling as they see fit; (2) owning and disposing of private property; (3) defending themselves against physical assault and preserving their own bodily autonomy; (4) participating in democratic legislation; and (5) invoking judicial procedures to enforce the first four activities. By analyzing the source of these activities and the rules applied to differentiate who could participate in them, I argue that the procedural rule-maker occupies a peculiar position of power in the liberal system that both shapes what “liberty” looks like and deploys it to the rule-maker's advantage. In this manner, a bias toward the consolidation of political and economic power may not only be getting in the way of our enjoyment of these things, but it may also affect our conception of what “liberty” is in the first place.

In contextualizing procedural law to the political and economic conditions that created it, I also ask the reader to reflect on the possibility that the way a culture resolves its disputes may be just as unique as its art, music, or film. Trials, too, are performances. In writing the rules of this performance, rule-makers draw on shared cultural values in order to craft a system that the public will actually use. When successful, formal dispute resolution procedures are able to absorb critique from various interest groups into specific venues with particular conditions of participation and pre-determined acceptable outcomes. By imagining what our dispute resolution process would look like if we were more aware of the role that the rule-maker's bias played in it, we might materially improve the system and our society in the process. But in order to create a practical procedural system in a modern global economy, we should use all the available tools to understand facts in the most objective manner possible. I use the Anglo-American history of legal procedures to resolve disputes over “liberty” and to make a case for why collecting demographic data is important to achieving this goal.

In Part I, I compare the procedures available to a feudal lord to reclaim a fugitive laborer in thirteenth-century England with the procedures the laborer could invoke to establish their freedom by claiming residence in a city in order to show how those procedures heavily favored the lords' claims. Although a procedure for workers to transform their legal status was available, it was virtually inaccessible and largely served to consolidate political and economic power within the Crown and other prominent feudal powers. Drawing on this observation, I outline five activities that “free” citizens could do that “unfree” servants could not and argue that procedural rights in Anglo-American law are deeply connected to an individual's relationship to property and land. I identify the tendency of Anglo-American governments to use procedural rules favoring the consolidation of power over the extension of the activities associated with freedom or “liberty” as the source of a procedural bias with economic, religious, and cultural origins.

In Part II, I show how this procedural bias contributed to early class conflict--and revolt--in England over labor and property. Given the resulting wealth inequality after the lower class's defeat, I argue that “liberty” was offered to (and sometimes forced upon) the poor to encourage emigration to the American colonies. While the activities associated with liberty expanded for English colonists, they were stripped from Africans and the original inhabitants of what is now America. I argue that the procedural bias identified in Part I was a contributing factor to the English colonialism of the sixteenth to eighteenth centuries and in the destruction of the activities associated with freedom for non-European people.

In Part III, I examine how the American colonies used procedural law governing claims to the bodies of enslaved people to enshrine this bias in a constitutional compromise. Given the competing rights among sovereign governments embodied in the federalist system, I illustrate how different political powers--northern, southern, and federal--deployed procedures to reclaim and liberate fugitive slaves to suit their own interest and advantage. To reiterate that procedure has political components, I show how these differences in procedural rules laid the battle lines for the constitutional conflict played out in the American Civil War.

In Part IV, I begin a prima facie case that procedural bias in the enforcement of the activities associated with freedom survived the elimination of chattel slavery. By taking a broad account of African Americans' lives during segregation and comparing the small amount of data available on African Americans' access to courts during the spread of codes of civil procedure and “fact pleading,” I argue that the procedural bias likely survived the transition from common law to civil code and contributed to a social loss within the Black community during the segregation era.

In Part V, I continue the inference by examining the historical impulses behind the Federal Rules of Civil Procedure. I argue the Rules were intended to absorb disputes from the laboring class into venues that espoused liberal access and resolution on the merits but were highly reliant on a trial judge's ability to devote attention to those merits. I discuss how these founding principles were applied during and after the civil rights movement, when numerous substantive laws were passed in order to enforce Black Americans' ability to participate in the activities associated with freedom. By comparing continuing inequalities in Black Americans' enjoyment of these activities to the Federal Rules' shift in preference from liberal access to a resolution on the merits toward the preference for disposition of cases before trial, I suggest that existing frameworks for experimenting with procedural rules provide potential avenues to improve the enjoyment of the activities associated with freedom for all American citizens. But these experiments should take place with as much information to support them as possible.

In conclusion, I propose that courts collect demographic data in surveys of American litigants on their experience in civil court to provide a meaningful starting point to address a likely bias that favors the consolidation of political and economic power. I argue that understanding how bias manifests itself in today's Rules of Civil Procedure is critical for expanding the enjoyment of the activities associated with success in liberal society.

[. . .]

The sum total of the history included here leads to a finding that is ultimately unsurprising and perhaps even intuitive: our legal system tends to work best for people who can help lawmakers consolidate their own power. The aim of reiterating this point throughout five distinct periods in Anglo-American history--from the origins of our legal system to the present day--is to suggest that the role of procedural law in creating this system is probably underappreciated; in many ways, procedural law is the system. The problem for scholars interested in changing it is what we do about it.

The likelihood that the effort suggested here will produce immediate results is quite low. Procedural rule-making is a slow process, and the time needed to conduct studies on experimental rules is considerable. Further, it is difficult to draw conclusions from the mere collation of demographic data with the information currently available because it consists only of procedural events represented as points in time of a lawsuit. But the use and collection of data to inform the rule-making process is almost universally recognized as a force yielding more positive results and ones that appear more objective to the public.

Given procedural rule-making committees' membership of experts with expertise in civil litigation who are selected independently from the political process, they have the capability to study and collect data on the rules' operation and implement reform in the way they see most beneficial from the standpoint of that expertise. Without evidence-based support, the committees cannot be as effective as they could with that data. To this end, the committees already collect significant data on litigants' interaction with the state and federal justice system. This data does not yet consider the litigants' identity in this analysis.

The point of this Article is to demonstrate that, when writing the rules of the game, culture, and identity probably make a difference. While this Article uses the procedures governing forced labor, freedom, and the activities associated with each to offer a different interpretation of racial inequality in Anglo-American society, similar analyses could likely be drawn for gender, sexual orientation, religion, national origin, and disability. Noting that the precepts of Western civil procedure were founded by European men who were above all concerned with the protection of property and its passage between generations by heterosexual marriage, we begin to see how analysis from any of these perspectives may illuminate a path to transformative innovation. Without any sort of check on the power of the procedural rule-maker, however, it appears quite difficult to maintain neutrality. We should view the collection of demographic data from litigants as a step towards correcting a system under stress.

And yet we cannot forget that some of these most critical innovations-- trial by jury, for example--were quite popular. Code pleading, for instance, seems to have been more popular than common law pleading; and common law pleading more popular than the ordeal or trial by battle. We should not neglect the faith the American public has in the legal trials performed in courtrooms every day: there are core competencies built into our system that are clearly worth keeping. But ones that perpetuate unequal and inefficient differentiations in enjoyment and enforcement of the personal rights do not share this characterization. Modern jurists have an opportunity to expand their field of vision.

A more thorough analysis of litigant data is likely to improve the operation of our justice system--whether one agrees that the Rules of Civil Procedure had a role in creating a system of racial differentiation in the personal rights or not. Because the tendency to use procedural rules to express political and economic imperatives pervaded the Western procedural method before both “white supremacy” and “white” people, the improvement considered here has the potential to improve the quality of substantive rights for citizens regardless of their race. Because the reason for procedural bias is ultimately based on a preference for the distribution of personal rights among a favored elite, there is strong potential for improving access to justice along lines of class. Elites versed in economic theory may share the desire to expand access to personal rights in order to expand economic growth.

Understanding the role that legal procedure plays in shaping disputes over enjoyment of the primary component rights of liberalism allows us to see procedural rule-making for the formidable, and in some ways, reality-shaping power that it truly is. In this light, our current “post-racial” environment may be seen as the natural outgrowth of a capitalist system that leveraged racism for a rush of necessary (human) capital and has now (correctly) determined that racism no longer serves an economically productive purpose. The problem appears to be that the system does not know how to correct itself. By more deeply understanding the concepts of both liberty and the procedures by which our courts enforce it, we might more intimately understand the nature of our “capitalist” system, which has always acknowledged both the tendency of the wealthy to pressure the lower classes and the need to relieve that pressure in public venues.

One may come away from this Article with an impression that “liberty” or “capitalism” is bad, and that “something else” is good. Yet, we must acknowledge that “liberty” or “liberalism” has accomplished significant progress in the service of freeing individuals from the arbitrary authority of monarchs and has placed tangible value in the hands of its citizens. Putting aside the question of whether liberty or liberalism is the final stopping point in societal development, we might view the procedural rule-making power as a way to expand both access to and the quality of personal rights for everyone. Scholars have already called for this type of experimentation, and as it has in many other places, the West might find something to gain by looking outside of itself. But if we choose to implement new rules, it will be difficult to determine their utility without collecting data on the citizens impacted by the change.

Imagine that you are a practitioner. You go to electronically file your client's complaint as is required in federal courts and in the majority of local counties. Before submitting your filing, you are asked to check a box that asks: “I certify that I have asked my client whether they wish to participate in a voluntary survey to improve our justice system based on their personal experience.” If the United States truly were a business and its elected officials truly executives, this exceedingly simple survey would have been implemented a decade ago. But we are not consumers of justice, we are constituents in it. If our private sector sees the benefit of a deeper understanding of our public processes, we as a community should ask nothing less of the rule of law--the crown jewel of Western society.

Assistant Professor of Law, University of the District of Columbia David A. Clarke School of Law; Dean Louis Westerfield Fellow, 2020-21, Loyola University New Orleans School of Law; J.D., 2008, Howard University School of Law.