Recourse, Litigation, and the Rule of Law

Law and Philosophy Ó The Author(s). This article is an open access publication 2024 https://doi.org/10.1007/s10982-024-09510-7 MATTHEW A. SHAPIRO RECOURSE, LITIGATION, AND THE RULE OF LAW (Accepted 22 May 2024) ABSTRACT. Recent high-profile lawsuits have supported competing narratives that alternately depict civil litigation as an essential instrument of the rule of law and a threat to the ideal. This essay argues that each narrative captures an important element of truth and that Gerald Postema’s account of the rule of law in his book Law’s Rule helps us (albeit unwittingly) to see why. While Postema presents recourse for alleged abuses of power as a universal and enduring facet of the rule of law, his conception of recourse turns out to resemble core features of the kind of adversarial litigation process exemplified by the U.S. federal civil justice system. Yet such a system both promises to promote and threatens to undermine each of the three principles that Postema claims are entailed by his understanding of the rule of law—namely, sovereignty, equality, and fidelity. Realizing recourse thus requires confronting difficult tradeoffs within each of those principles, as well as within the overarching rule-of-law ideal. And if the rule of law can’t be instantiated unequivocally in any particular set of institutions, then perhaps we should be more willing to treat the ideal as a subject of politics rather than just a constraint on it. I. INTRODUCTION Recent high-profile lawsuits have supported two competing narratives about the relationship between civil litigation and the rule of law. On the one hand, litigation is often touted as an important instrument of the rule of law that allows individuals to hold powerful actors accountable for their misdeeds. Proponents of this narrative cite legal victories such as Fox News’s settlement of Dominion Voting Systems’ defamation lawsuit regarding false claims about the 2020 U.S. presidential election and E. Jean Carroll’s successful sexualassault and defamation lawsuit against Donald Trump (as well as litigation prompted by the ‘‘MeToo’’ movement more generally). At the same time, though, litigation has increasingly come to be seen as M. A. SHAPIRO a threat to the rule of law, with proponents of this counter-narrative decrying ‘‘vigilante’’ citizen suits authorized by novel legislation such as Texas’s infamous Senate Bill 8 and the ‘‘weaponization’’ of ordinary litigation by powerful actors to oppress their victims.1 Civil litigation, it would seem, occupies an uncertain place in a political regime committed to the rule of law. In this essay, I argue that each narrative captures an important element of truth and that Gerald Postema’s account of the rule of law in his book Law’s Rule2 helps us to see why—by (unwittingly) revealing a set of recurring, and likely ineliminable, tradeoffs within the rule-of-law ideal itself. The rule of law, Postema convincingly contends, requires that those who wield power in society be accountable, and one of the primary ways of ensuring such accountability according to Postema’s theory is to afford recourse to those over whom power is exercised. Even as Postema presents recourse for alleged abuses of power as a universal and enduring facet of the rule of law, however, he associates the mechanisms of recourse with certain ‘‘procedural rights that’’, he insists, ‘‘lie at the heart of the rule of law’s demand of legality’’.3 And as he elaborates those procedures, it becomes clear that they resemble core features of the kind of adversarial litigation process exemplified by the U.S. federal civil justice system, including party control over the initiation, scope, and continuation of litigation; opportunities for the parties to directly confront each other; and a legalistic form of argumentation. Nor are these procedural features merely incidental (and thus potentially severable) elements of Postema’s theory, for he ends up grounding them in the more fundamental values underlying his account of the rule of law. Postema’s proceduralized conception of recourse rightly emphasizes the value of popular engagement with the law and legal institutions, but I also want to suggest that it confounds any straightforward relationship between recourse and the rule of law. In particular, it turns out that the adversarial form of recourse Postema envisions both promises to promote and threatens to undermine 1 See, e.g., Jessica Kelin, ‘‘How Domestic Abusers Weaponize the Courts’’, The Atlantic, July 18, 2019, https://www.theatlantic.com/family/archive/2019/07/how-abusers-use-courts-against-theirvictims/593086/. 2 Gerald J. Postema, Law’s Rule: The Nature, Value, and Viability of the Rule of Law (Oxford: Oxford University Press, 2022). 3 Postema (2022), p. 72. RECOURSE, LITIGATION, AND THE RULE OF LAW each of the three principles he claims are entailed by his understanding of the rule of law—namely, sovereignty, equality, and fidelity. Realizing recourse thus requires confronting difficult tradeoffs within each of those principles, as well as within the overarching rule-of-law ideal. While we might be able to manage those tradeoffs in various ways, we likely can’t eliminate them altogether, except at the price of unduly curtailing the accountability of powerholders or, at the other extreme, leaving the institutional mechanisms of accountability dangerously vulnerable to cooptation or exploitation by those who would subvert the rule of law. Given the normative difficulties associated with designing a regime of recourse, a variety of institutional arrangements will likely satisfy the rule of law’s demand for accountability, with each entailing different costs for other aspects of the ideal. It may sometimes be possible to identify a single normatively superior arrangement. I suspect, however, that a uniquely ‘‘best’’ arrangement will often remain elusive—whether because the competing arrangements’ costs and benefits for different facets of the rule of law are incommensurable or because there’s reasonable disagreement about how to make tradeoffs between those costs and benefits. When that’s so, the question becomes who should have the authority to choose among the various reasonable arrangements. Recent populist threats to the rule of law have led many scholars to advocate insulating legal institutions from popular influence and consigning the maintenance of the ideal to non-representative institutions, especially politically independent constitutional courts.4 But if even familiar legal institutions such as civil litigation frequently have more ambiguous implications for the rule of law than commonly supposed, then perhaps the people should have more say over exactly how law rules in their political community. We shouldn’t expect a normatively complex ideal such as the rule of law to be instantiated unequivocally in any set of institutions, and that being the case, maybe we should be more willing to treat the ru (...truncated)