With growing economic inequality, questions of distributive justice have become increasingly prominent in legal scholarship, particularly public law scholarship. Civil procedure scholarship has been no exception, traditionally addressing such questions under the heading of “access to justice.” And yet, despite the ubiquity of the phrase, discussions of access to justice have tended to focus almost exclusively on how procedural resources and opportunities should be distributed and, accordingly, who should receive any given share of those resources and opportunities. Much less attention has been paid to what, exactly, is being distributed—which specific goods access to justice actually comprises. Perhaps because of this vagueness, proponents of access to justice have coalesced around a fairly stable set of policy positions on a wide range of procedural issues. 

This Article shows that apparent consensus to be much less secure than scholars commonly assume. Only by abstracting from the specific goods associated with access to justice can scholars achieve such widespread agreement about which procedural rules and policies accord with distributive justice. In fact, scholars allude to multiple distinct goods when advocating broad access to justice. Though often treated as interchangeable or even synonymous, those goods, once distinguished, entail potentially conflicting implications for some of the doctrinal and policy issues that currently preoccupy civil procedure scholars, complicating the standard access-to-justice position on each one. Whether a particular policy promotes access to justice and satisfies the demands of distributive justice depends on which specific goods we’re trying to facilitate access to. The unadorned concept of access to justice doesn’t have the fully determinate, unidirectional policy valence that many scholars assume it does. 

The problem, moreover, runs much deeper than just an ambiguity about the aims of civil justice. For the different goods associated with access to justice can be traced to different—and often conflicting— functions of the modern liberal state. Such conflicts are fundamental, going to the core of liberalism, and so are no more likely to be definitively resolved in civil procedure than they are in any other context. That being the case, we should expose and acknowledge the conflicts between different procedural (and political) goals and restructure procedural rulemaking institutions to better negotiate them, rather than imagine that blunt appeals to access to justice alone can determine civil procedure’s proper response to increasing economic inequality. We shouldn’t expect the task of determining the legal implications of economic inequality to be any more straightforward—or any less contentious—in civil procedure than it has been in public law. And public law, for its part, may end up having to make some of the same kinds of difficult trade-offs that civil procedure scholars have been loath to confront. 

Continue reading Distributing Civil Justice.