The Yale Law Journal

April 2019

Pleading Poverty in Federal Court

Civil ProcedureAdministrative Law

abstract. What must a poor person plead to gain access to the federal courts? How do courts decide when a poor litigant is poor enough? This Article answers those questions with the first comprehensive study of how district courts determine when a litigant may proceed in forma pauperis in a civil lawsuit. It shows that district courts lack standards to determine a litigant’s poverty and often require litigants to answer an array of questions to little effect. As a result, discrepancies in federal practice abound—across and within district courts—and produce a pleading system that is arbitrary, inefficient, and invasive.

The Article makes four contributions. First, it codes all the poverty pleadings currently used by the ninety-four federal district courts. Second, it shows that the flaws of these procedures are neither inevitable nor characteristic of poverty determinations. By comparing federal practice to other federal means tests and state-court practices, the Article demonstrates that a more streamlined, yet rights-respecting approach is possible. Third, the Article proposes a coherent in forma pauperis standard—one that would align federal practice with federal law, promote reasoned judicial administration, and protect the dignity of litigants. Such a solution proves that judges need not choose between extending access to justice and preserving court resources. In this instance and perhaps others, judges can serve both commitments of the federal system. Fourth, the Article illustrates how to study procedure from the bottom up. Given the persistent and widening levels of inequality in American society, no account of civil procedure is complete without an understanding of how poor people litigate today.

author. Senior Lecturer in Law, Letters, and Society in the College and Lecturer in Law, University of Chicago Law School. I am grateful for comments from Emily Buss, Zach Clopton, Justin Driver, Ben Eidelson, Bonnie Ernst, Lee Fennell, Amanda Frost, Maggie Gardner, Abbe Gluck, Daniel Hemel, Scott Hemphill, William Hubbard, Aziz Huq, Emma Kaufman, Ariel Jurow Kleiman, Liz McCuskey, Lou Mulligan, David Noll, Richard Re, Judith Resnik, Ezra Rosser, Shayak Sarkar, Margo Schlanger, Liz Schneider, Brian Soucek, Ben Spencer, Adam Steinman, and Charles Tyler. Katherine Blankinship provided steadfast research assistance. Thanks also to the organizers and participants of the American University Washington College of Law’s Poverty States conference, the annual Law & Society meeting, the Civil Procedure Workshop at the University of Arizona James E. Rogers College of Law, and the Liman Colloquium at Yale Law School as well as the law faculties at the University of California-Davis, the University of Chicago, the University of Florida, George Washington University, Indiana University, the University of Maryland, the University of Michigan, Northwestern University, the University of Richmond, and the University of San Diego for allowing me to workshop earlier versions. Finally, I thank Hannah Schoen and the other editors of the Yale Law Journal.