Home > Journals > WMLR > Vol. 66 (2024-2025) > Iss. 6 (2025)
William & Mary Law Review
Abstract
When the Federal Rules of Civil Procedure came into being in 1938, a broad political economy discourse was driving significant legal and policy reform efforts. Legal scholars, economists, political leaders, and others placed questions of economic power and their relationship to democracy at the center of those reform efforts, honing and developing a political economy tradition that is a forebearer to today’s law-and-political economy (LPE) approach. Both then and today, the relationship of civil procedure to these trends has not been fully mined. This Article tells a vital part of that story, tracing the federal civil procedure system’s political economy story from its modern origins through the present day, analyzing how procedure has been oriented around and away from the questions that center in political economy analysis.
Three strands have characterized the field during this period—a progressive political economy strand, a neutrality strand, and a neoliberal strand. The progressive political economy strand was prominent at the turn of the twentieth century as a broad array of lawyers explored how procedure was implicated in ongoing economic power struggles over the rights of workers and corporations and their relationship to democratic ordering. The strand, however, would soon fade as neutrality came to prominence with the rise of the Federal Rules of Civil Procedure in 1938. While the Federal Rules were in part New Deal achievements, founded in faith in expertise and the ability of government to solve problems, the reformers behind the rise of the modern procedural regime viewed procedure as a domain separate from substantive policy-making and the political economy concerns increasingly characterizing it. Questions of economic power largely receded from view as procedure-making was seen as a value-neutral science best effectuated by experts laboring outside politics. The commitment to neutrality characterized the civil rules system for some time—and, in some ways, still does today. But the commitment came under pressure as litigation rates grew with legislatures creating more rights of action to enforce regulatory policies and related developments evinced the connection between procedure and policy implementation. The procedural regime thus came to be viewed as being in a state of crisis. This crisis helped lay the groundwork for a final shift in procedure—a neoliberal shift— with judges using procedural interpretation to undermine the litigation system and its regulatory functions, focusing on efficiency and minimizing further considerations of power and democracy, thereby renovating the neoclassical traditions and approaches to political economy that New Deal reformers had resisted.
This Article’s account bears implications for civil procedure and LPE. The history clarifies procedure’s modern roots, the functions and limits of neutrality, and the complicated relationship between neutrality and neoliberalism. And it shows how important procedure is to the questions LPE scholars consider and how distanced it is from the reorientations they seek. To close the gap, this Article begins to sketch out the pieces that might together form a reinvigorated view of procedural political economy.