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102 Iowa L. Rev. 1633 (2016-2017)
Substantive Equality and Procedural Justice

handle is hein.journals/ilr102 and id is 1669 raw text is: Substantive Equality and Procedural Justice Paul Stancilr ABSTRACT: The Federal Rules of Civil Procedure reflect a formal equality approach to civil justice. Formally equal systems promote justice by treating like cases as like. Theories embracing formal equality norms therefore implicitly depend on the idea that identical treatment equates to fair treatment. Alternatively, substantive equality theorists maintain that formal equality is sufficient only if the underlying population is itself sufficiently homogeneous to ensure that outcomes will not be the product of a tilted playing field. Whatever the merits of a formal equality approach when the Federal Rules were created in the 1930s, such rigid formalism is wholly unjust now because the requisite homogeneity is absent from modern civil litigation. Instead, new causes of action, new procedural devices, and a significant expansion of the role of private enforcement have combined to create a civil litigation environment characterized by marked heterogeneity. As a result, transsubstantive procedural rules premised on the continued dominance of the r938 paradigm case no longer promote substantive equality. This overlooked reality means that federal rulemakers must embrace norms that ensure accuracy and participation rights, even if that implies that the same procedural rules no longer apply across all categories of cases. In other words, the Supreme Court and the committee rulemaking process must discard rigid formal equality in favor of a substantive equality approach. This Article offers the first examination of what truly substantively neutral rules of civil procedure will require. I. INTRODUCTION ............................................1635 II. DEFINING EQUALmIY AND PROCEDURALJUSTICE..................1640 * Professor of Law, J. Reuben Clark Law School, Brigham Young University. Thanks to Judith Resnik, Stephen Burbank, and Robert Bone for their comments on earlier versions of this Article. Thanks also to Emery Lee, Suja Thomas, Aaron Nielson, Carolina Nufiez, and Ronnell AndersenJones, as well as participants at the First Annual Civil Procedure Workshop, the Junior Federal Courts Conference, and the faculties at Indiana University-Bloomington and Brigham Young University for their comments on earlier versions of this piece. Special thanks to Jarrett Szcezny, Alexandra Sandvik, MatthewJaynes, andJesse Houchens for able research assistance. All errors are my own. 1633

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