Can national judiciaries play a role in resisting democratic backsliding? This essay explores the role of courts in the context of democratic erosion by examining case studies from South Africa and Colombia that showcase positive models of judicial intervention. Such positive results are not pervasive—Hungary’s and Poland’s experiences, for example, cut in the other direction. But by examining the institutional and political conditions under which national judiciaries have impeded, if not prevented, backsliding, it is possible to gain some insight into how courts can play a role in supporting democratic practice.
“Ad hoc procedure” seems like an oxymoron. A traditional model of the civil justice system depicts courts deciding cases using impartial procedures that are defined in advance of specific disputes. This model reflects a process-based account of the rule of law in which the process through which laws are made helps to ensure that lawmakers act in the public interest. Judgments produced using procedures promulgated in advance of specific disputes are legitimate because they are the product of fair rules of play designed in a manner that is the opposite of ad hoc.
Actual litigation frequently reveals the inadequacy of procedures created according to this traditional model. To fix the procedural problems that arise in such cases, litigants, judges, lawyers, and legislatures can design procedure on the fly, changing the “rules of the road” as the case proceeds. Ad hoc procedure-making allows the civil justice system to function when ordinary procedure fails, but it challenges the rule-of-law values reflected in the traditional model of procedural design. Instead of being created by lawmakers who operate behind a veil of ignorance, ad hoc procedure is made by actors seeking specific outcomes in pending cases. The circumstances in which ad hoc procedure is created raise concerns about lawmakers’ motivations, the transaction costs of one-off procedural interventions, the wisdom and fairness of those interventions, and the separation of powers.
This Article introduces the phenomenon of ad hoc procedure and considers its place in a world where much procedure continues to be made through the traditional model. Focusing on ad hoc procedural statutes, the Article contends that such statutes’ legitimacy—or lack thereof—depends on different factors than ordinary civil procedure. Unable to claim legitimacy from the circumstances in which it is crafted, ad hoc procedural legislation must instead derive legitimacy from the need to address a procedural problem and the effort to produce substantively just outcomes.
In a 2013 article, I explained that the Supreme Court and federal circuits had cut back significantly on plaintiffs’ ability to bring class actions. As I explain in this article, that trend has subsided. First, the Supreme Court has denied certiorari in several high-profile cases. Second, the Court’s most recent class action rulings have been narrow and fact specific. Third, the federal circuits have generally rejected defendants’ broad interpretations of Supreme Court precedents and arguments for further restrictions on class certification. One explanation for this new trend is that defendants have been overly aggressive in their arguments, losing credibility and causing courts to push back. Another is that courts are retreating from the view that pressure on defendants to settle is itself a reason to curtail class actions. It remains to be seen, however, whether this trend is the new normal, or merely a respite from the decline of class actions.