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Labor and the Origins of Civil Procedure

A series of changes within civil procedure over the past few decades — including heightened pleading standards, barriers to class action, and the rise of private arbitration — may diminish the economic power of workers and consumers. While scholars have noted these economic consequences, this project demonstrates that avoiding them was a central goal of those who crafted American federal civil procedure in the first place. This Article retraces the New Deal era legal struggles around the procedures of federal district courts issuing injunctions in labor disputes, their resolution in the Norris-La Guardia Act of 1932, and their influence on the rise of the Federal Rules of Civil Procedure in order to reveal the progressive economic foundations of federal civil procedure. The Article shows how these legal struggles aid in interpreting the background purposes of the Federal Rules of Civil Procedure. It also demonstrates how they furnish useful conceptual resources. In particular, it explores how the Norris-La Guardia Act is an instance of the federal government facilitating the exercise of the “countervailing power” of workers. While countervailing power is typically thought of as being facilitated by substantive law, the Norris-La Guardia Act demonstrates how the concept can be employed within civil procedure by providing economically less advantaged parties with open hearings (publicity) and structuring procedure to protect their ability to amass power through association (aggregation). More broadly, this Article argues that the concept of countervailing power supplies economic reasons for protecting public adjudication as an instrument of publicity and class action as an instrument of aggregation. This Article then critiques the recent changes in civil procedure based on how they diverge from these background purposes and diminish the ability of workers and consumers to exercise countervailing power.