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A series of changes within civil procedure over the past few decades—including the rise of private arbitration, the accompanying decline of public adjudication, and the erection of barriers to class actions—have diminished the economic power of workers, consumers, and diffuse economic actors. This Article demonstrates that avoiding these economic consequences was a central goal of those who crafted American federal civil procedure in the first place. Driven to action by the procedural issues involved in labor injunction cases, leading procedural reformers behind the modern regime strove to make American federal civil procedure sensitive to questions of political economy and designed it to mitigate rather than reflect economic power imbalances. This Article connects their procedural reform efforts in the enactment of the Norris-LaGuardia Act of 1932 to the rise of the Federal Rules of Civil Procedure of 1938, and, in so doing, reveals the unexplored progressive economic foundations of federal civil procedure.

This history provides a platform for a more conceptual analysis about civil procedure and economic power. The Article embeds the Norris-LaGuardia Act’s procedural provisions in the rise of the federal government’s facilitation of the “countervailing power” of workers, and begins to articulate the procedural dimensions of economic empowerment. While countervailing power is typically thought of as being facilitated by substantive law, the Norris-LaGuardia Act demonstrates how civil procedure can facilitate the exercise of countervailing power by providing economically less-resourced parties with open hearings and structuring procedure to protect their ability to amass power through association. More broadly, and returning to present issues, this Article argues that the recent transformations in civil procedure both undermine the economic purposes that were central to the regime’s rise and diminish the ability of diffuse economic actors to exercise counter- vailing power—threatening once-enduring procedural commitments.

The Supreme Court has interpreted the Federal Arbitration Act of 1925 (FAA) in a broad way that has allowed firms to widely privatize disputes with workers and consumers. The resulting expansive growth of American arbitration law has left commentators both concerned about the structural inequalities that permeate the regime and in search of an effective limiting principle. This Article develops such a limiting principle from the text and history of the FAA itself. The Article reinterprets the text and history of section 1 of the statute, which, correctly read, excludes individual employee-employer disputes from the statute’s coverage. The Article argues that section 1, though targeted at employees, is based on a parity principle that holds that the state has reason to regulate and limit the enforcement of arbitration agreements where deep economic power imbalances exist between the parties— that is, where relative parity is lacking. The parity principle underlying section 1 can best be understood through the lens of Progressive-Era thought at the time of the FAA’s enactment that focused on the regulatory responsibility of the state, through public adjudication and legislation subject to judicial interpretation, to publicly oversee the resolution of disputes and distribution of rights between parties of highly disparate economic power. This Article develops the logic and theory of the parity principle, and explores its implications for how courts should interpret the FAA and for legislative and administrative reforms targeted at workers and consumers.