Neoliberal Civil Procedure

Abstract

This Article argues that the current era of U.S. civil procedure is defined by its neoliberalism. The Supreme Court has over the past few decades reinterpreted the Federal Rules of Civil Procedure in ways that place barriers in the way of citizens seeking to bring civil claims. The major decisions of this new era—in areas as diverse as summary judgment, pleading, class actions, and arbitration—exhibit neoliberal hallmarks. They display neoliberalism’s tendency to naturalize existing market arrangements, its focus on efficiency and obscuring of questions of power, its reduction of citizens to consumers, and its attempt to analyze government through the lens of market-modeled concepts. As the Court’s procedural decisions make it increasingly difficult for citizens to bring claims enforcing regulatory law—including antitrust, antidiscrimination, consumer protection, and worker protection law—the Court’s neoliberal orientation lurks in the background and helps to explain procedure’s modern progression. In order to fully appreciate, critique, and potentially move beyond the current era of U.S. civil procedure, it is important to understand the neoliberal logic that drives it—and the logics and values it obscures and sidelines.