Comment to Section 2.04 of ALI Council; Draft 2 on Civil Multidefendant Litigation

Comment to Section 2.04

I believe that section 2.04 should be stricken in its entirety. It invites the raising of defenses based on race or alienage, and subjects all provisions of the draft to challenge on the basis of “disparate impact”, a concept rejected by the Supreme Court in all contexts involving anti-discrimination legislation save housing. As President Levi pointed out at the initial MCG meeting, the reference to “legal status” as a justification for improved procedures touches a political third rail.

Although the title of the section is changed from “Nonsubordination” to “Procedure and Vulnerable Parties”, the lead sentence refers to “groups” as well as individuals. The section is an invitation to allege racial or anti-alien discrimination in every case involving a member of an allegedly disadvantaged group, and the reference to “least restrictive” rules is, as a multitude of discrimination cases show, an invitation to judges to substitute their individual judgments as to fair procedure for that of legislatures, rules committees, and appellate courts. The extensive reportage, which remains largely unchanged, includes many cases where this has happened.

At the first meeting of the MCG group, I presented the Director, Judge Wood, with a copy of the late Director Geoffrey Hazard’s essay in the University of Chicago Law Review on “Social Justice through Civil Justice” decrying efforts to “define deviancy down” in the civil justice system, not least because of the transfer of power from legislators to judges. While the Reporters have tempered some of their rhetoric and pay lip service to “equal justice”, the result is the same as the first draft. The references to “groups” as well as individuals, and the references to words of art like “disparate impact” and “least restrictive means” clearly reveal that ethnic preferences are intended and, whether or not intended, will be claimed in a myriad of cases.

The blunt fact is that this project addresses classes of collection cases the overwhelming majority of which involve people who have incurred debts not justified by their contracts or leases. Society has an interest, unfashionable though it may be, in the prompt collection of just debts. Invitations to frivolous roadblocks are likely to generate two kinds of costs: greater inter-ethnic resentments, and a diminution in the availability of consumer credit and rental housing, particularly to so-caled vulnerable groups.

An A.L.I. draft legitimizing, on whatever pretext, differing treatment of racial or ethnic groups flies directly in the face of the Equal Protection clause which, despite its contested applications to school discrimination and legislative apportionment was conceded even by the strictest of its constructionists to apply to court procedures, invalidating the exclusions of blacks as plaintiffs, witnesses, and parties to contracts. A draft on procedure is the last place that racial and ethnic distinctions should be explicitly re-introduced, even for benevolent purposes. Let us not also forget that the guarantees of the 14th Amendment explicitly run to “persons” not to “groups”.

The benevolent intentions of the Reporters have been widely duplicated in our society over the last 150 years. They are not discreditable, but may have perverse results. I have always been impressed by the letter of the great landscape architect Frederic Olmsted, who had early in his life had spent two years as a New York newspaper’s correspondent in the South, in a letter to President Lincoln of March 8, 1862:

“If the two classes of duties (governmental and charitable) are not absolutely inconsistent one with another, the exercise of the latter by the same person with the former will do much to maintain a confusion of ideas [from] which it is a large part of the duty of the government to free them. It would be better for the state and more merciful to the negroes to guillotine them at once than to educate them by any means in beggary, distrust of themselves. and cowardly hatred of the first duties of freedom.”

George W. Liebmann

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