Poverty Law and Civil Procedure: Rethinking the First-Year Course
Hershkoff, Helen, Fordham Urban Law Journal
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.
I. 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. …