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.
