By Seth Davis, responding to “Overview and Summary” by Claire Lucas
Thank you, Claire, for introducing our colloquium and getting the conversation started. I want to take up one of the threads you laid down for us, drawing on the views that Jacinta Gonzalez and Jessica Bansal graciously shared with us: “litigation processes — e.g., depositions and document discovery — are laden with opportunities for lawyers to shift power to clients/communities.”
That’s not typically how we think of civil procedure. If anything, procedure might seem a game played by secret rules, a game that’s profoundly disempowering for those caught up in it. As Arthur Miller has put it, “[t]he pretrial process has become so elaborate with time-consuming motions, hearings, and discovery that it often seems to have fallen into the hands of some systemic Sorcerer’s Apprentice.”
But perhaps the fault lies in us, not in our stars. As you point out, and as Gonzalez and Bansal discussed, lawyers are not the only ones who think carefully about process. Social movement organizers focus on processes of empowerment, collaboration, and self-determination. Perhaps the lesson is not simply that lawyers should be open to shifting power to the clients and communities they serve — though that lesson is important. Perhaps the lesson is that lawyers should rethink how we talk about process.
What might that look like? In reading your post, two possibilities sprang to mind.
First, we might reclaim some of what’s been lost from our talk about civil procedure. Why do we think a person who has been wronged should have a day in court? (Do we still believe that?) We might think that the right to one’s day in court matters because a court’s where you look for a personal remedy when you’ve been wronged. That’s a powerful idea, no matter how romantic it might seem. But it is incomplete. Civil procedure, we might think, can also be about empowerment, self-determination, democracy.
This sort of talk about process is not foreign to our legal system or the systems of other countries. Judith Resnik has pointed out that over the past three centuries, “[s]ocial movements succeeded in many countries in transforming adjudication into a democratic practice to which all persons — regardless of gender, race, class, and nationality — have access to open and public courts . . . .”
I want to resist, then, the idea that process-as-empowerment is inconsistent with our legal tradition. The ideal of open courts — with open processes — is a democratic ideal. But that doesn’t mean it isn’t a lawyer’s ideal too.
Second, we might also think about how changes in the democratic quality of our politics and changes in the democratic quality of our civil procedure interact and intersect. What we may be seeing in both our politics and our civil procedure is a shrinking of the space for democracy and self-determination.
It’s tempting to see the convulsions in American politics as a result of the last election as the most recent exhibit in a case against democracy. Consider, for example, that the current Administration is seeking to restrict court access in ways that may harm the people who voted for President Trump. One take is that we need “to break with democratic politics.”
Another take is that the last election – and the Trump Administration’s bid to restrict court access – both emerge from a campaign against democracy, one in which voters are kept out of the ballot box and consumers are shown the courthouse exits.
Perhaps movement lawyering raises questions that reach far beyond law and courts. What do our commitments to democracy demand of us – inside the ballot box, inside the courthouse, and outside both?