The Vanishing Plaintiff

What if restrictive procedural rules kept cases like Bakke v. Regents of the Univ. of Cal., Monell v. Dept. of Soc. Servs., and Hopkins v. Price Waterhouse from making it past a motion to dismiss and on to the Supreme Court? A case like Bakke is well-known for its holding about the use of race in admissions policies. But imagine that Alan Bakke was never able to get his original trial court complaint past a motion to dismiss, through discovery, and on to a final, appealable judgment. While reasonable people can disagree about the merits of Bakke, it is fair to say that our collective legal consciousness would be altered had he not been able to have his paradigmatic day in court. Yet, that world - the one without Bakke and his legal claim - is exactly the world in which our civil justice system increasingly finds itself. Plaintiffs like Bakke are simply vanishing, and the restrictive procedural regime is largely to blame. Over the past thirty years, Congress, the Supreme Court, and the civil rule-making bodies have responded to the argument that litigation is burdensome by restricting access to the system itself through changes to procedural doctrine. These institutions are concerned about the effect that merit-less litigation has on defendants. Yet, both the institutions responsible for formulating procedure and the scholars that critique the same have failed to carefully consider one critical issue: the identity of the plaintiffs whose meritorious claims are sacrificed under a restrictive procedural regime. We already know the identity of the defendants that most benefit under this regime - they are corporations, government bodies, and other organizations. But, the identity of the plaintiffs whose meritorious claims are lost is unknown and unstudied. This article constructs an identity for these plaintiffs by arguing that recent restrictive procedural changes, like those to pleading and summary judgment, interact differently with some plaintiffs’ distinctive characteristics, like race, economic status, and/or gender. The result is that these plaintiffs - who the article calls vanishing plaintiffs - are less able to bring their claims. They are either barred from pursuing their claims by operation of a particular procedural rule or they are unable to get their claims into the system at all because of the regime’s overall chilling effect. The loss of these claims comes at a high systemic cost. Litigation by vanishing plaintiffs has historically created new bodies of law and has served to enforce that law when other enforcement mechanisms have failed. With the exclusion of the vanishing plaintiff and her claims comes the loss of these critical path-breaking and enforcement mechanisms. Thus, in order to regain this benefit, the institutions responsible for crafting procedural doctrine should carefully consider how changes in procedure impact vanishing plaintiffs. This article argues that such a consideration will often require a retreat from the current restrictive procedural regime