"Encroachments and Oppressions": The Corporatization of Procedure and the Decline of Rule of Law

This Article begins by providing a brief account of the corporatization of procedure through judicial decision-making and noting some of the detrimental effects it has had on the preservation of rule of law and access to justice. Part II goes on to explore how the judiciary does not retain full control over procedure and how corporate entities have little care for whether a procedural reform simply cuts back at litigation or goes further and cuts back at judicial power and the judicial role itself. To illustrate these points, Part II examines the most recent attempt at “procedural reform” by corporate entities—the proposed Fairness in Class Action Litigation Act (FICALA). The most dramatic procedural changes in FICALA involve multidistrict litigation (MDL).

These changes would cut back significantly at judicial power and discretion as well as the role of the judiciary in preserving the rule of law. Part III explores one of the implications of having two political branches and one nonpolitical branch of government—namely, that moneyed corporate interests effectively get two bites at the procedural apple. This state of affairs raises a number of fundamental questions, including ones regarding the appropriate nature and scope of legislative and judicial power over procedure. Part III grapples with those questions.