Infusing Civil Rulemaking with Economic Theory

Abstract

Reviewing Professor Paul J. Stancil, Substantive Equality and Procedural Justice, forthcoming Iowa L. Rev. (2017), https://ssrn.com/abstract=2764240

 Departing from this norm, Paul Stancil’s Substantive Equality and Procedural Justice is a highly ambitious piece that strives to anchor civil procedure and the rulemaking process in a theoretical construct, largely moored in sophisticated economic analysis.

As such, this piece is part of a subset of academic literature that suggests that the field of civil procedure lacks theoretical heft. Since the enactment of the Federal Rules of Civil Procedure more than seventy-five years ago, intellectually inclined academics periodically have called attention to a lack of “theory” undergirding civil procedure. Typically, this is accompanied by a call for rulemakers to infuse the rulemaking process with the author’s proposed theoretical construct. Stancil’s article is part of this genre; as he states, “Civil procedure has been too long without a theory” – a lacuna he intends to remedy.

In essence, Stancil’s article is a criticism of the foundational transsubstantive norm of the Federal Rules of Civil Procedure, that one set of rules should apply to all cases under all substantive law. Simply stated, he points out that the “homogeneous” nature of the civil case that pervaded rulemaking in 1938 has been rendered inequitable by the reality of “heterogeneous” cases on the modern civil docket. Consequently, the prevailing norm of transsubstantive rules and rigid formal equality fails to promote substantive equality. Each new generation of procedural scholars periodically arises to question the prevailing transsubstantive rulemaking norm. This is an old and recurring debate in the procedural arena.