Pleading Poverty in Federal Court. (2024)

AUTHOR. Senior Lecturer in Law, Letters, and Society in the Collegeand Lecturer in Law, University of Chicago Law School. I am grateful forcomments 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, LizSchneider, Brian Soucek, Ben Spencer, Adam Steinman, and Charles Tyler.Katherine Blankinship provided steadfast research assistance. Thanksalso to the organizers and participants of the American UniversityWashington College of Law's Poverty States conference, the annualLaw & Society meeting, the Civil Procedure Workshop at theUniversity of Arizona James E. Rogers College of Law, and the LimanColloquium at Yale Law School as well as the law faculties at theUniversity of California-Davis, the University of Chicago, theUniversity of Florida, George Washington University, Indiana University,the University of Maryland, the University of Michigan, NorthwesternUniversity, the University of Richmond, and the University of San Diegofor allowing me to workshop earlier versions. Finally, I thank HannahSchoen and the other editors of the Yale Law Journal.

ARTICLE CONTENTSINTRODUCTION 1481I. IN FORMA PAUPERIS PRACTICE 1485 IN FEDERAL COURT A. The History of In Forma Pauperis 1486 Status in Federal Court B. The Benefits of In Forma Pauperis Status 1492 C. The Flaws of Federal In Forma 1495 Pauperis Practice 1. Summary Statistics of the In Forma 1496 Pauperis Forms 2. The Arbitrary Nature of Federal In Forma 1497 Pauperis Practice 3. An Inefficient Procedure for Judges 1500 4. An Invasive Procedure for Litigants 1503 5. A Faulty Status Quo for the Federal Courts 1505 II. OTHER SOURCES OF POVERTY PLEADING 1507 A. Means Tests in Federal Law 1507 B. In Forma Pauperis Practice in State Courts 1510III. TOWARD A COHERENT IN FORMA 1514 PAUPERIS STANDARD A. Designing a National In Forma Pauperis 1515 Standard for the Federal Courts B. Adopting a National In Forma Pauperis 1521 Standard for the Federal Courts 1. Congress 1522 2. The Judicial Conference 1523 3. U.S. District Courts 1525IV. BOTTOM-UP PROCEDURE 1526 A. A Different Perspective 1526 B. Whither Civil Procedure? 1530CONCLUSION 1537APPENDIX A: IN FORMA PAUPERISPRACTICE IN U.S. DISTRICT COURTS AND STATE COURTS 1539APPENDIX B: PROPOSED IN FORMA 1565PAUPERIS FORM

INTRODUCTION

In a nation racked with persistent poverty and increasinginequality, it is worth asking how the federal courts encounter andaccommodate litigants with limited means. Almost forty million Americanslive below the federal poverty level. (1) Forty percent of Americanadults report not having the savings to cover a $400 emergency--the sameamount it costs to file a case in federal court. (2) Yet, thesefinancial realities for low-income litigants collide with a civiljustice system that demands that those individuals act as their ownadvocates. The federal courts constitute an indispensable forum forlow-income individuals. They hear thousands of cases involving allegedunlawful practices by the employers and government actors with whom poorpeople interact on a regular basis. Indeed, employment discrimination,police misconduct, and disability determinations make up a significantportion of the federal question cases in the federal courts. (3) Giventhat American civil justice largely relies on private enforcement offundamental rights, we should not lose sight of procedural rules thatonly apply to poor litigants. Procedural rules may impinge on theability of litigants to vindicate their claims, especially those arisingunder the Constitution and the laws of the United States. Mindful ofthose stakes, this Article works through the first rule that poor peopleencounter when they file a lawsuit in federal court.

Since 1892, Congress has authorized the federal courts to grant informa pauperis (IFP) status to litigants who submit a financialaffidavit declaring their poverty. Yet, the regime now inplace--governed by 28 U.S.C. [section] 1915(a) and Federal Rule of CivilProcedure 83--affords federal judges broad discretion to determinewhether a litigant qualifies for IFP status. As a result, the manner inwhich people plead poverty in federal court varies dramatically acrossthe federal system. This pleading structure burdens judges andlitigants, and it differs from the poverty determinations conducted byfederal agencies, state agencies, and state courts.

This Article builds its argument from the ground up by tracing thedisparate IFP practices of the United States' ninety-four federaltrial courts. Drawing on both federal law and state-court practice, theArticle proposes a coherent IFP standard. It connects this inquiry withbroader debates in procedure, including those around access to justiceand the future of civil adjudication. More broadly, this Articletypifies what one might call bottom-up procedural scholarship. Such anapproach will often prioritize poor litigants over wealthy ones, trialcourts over appellate, and routine adjudications overprecedent-shattering rulings.

The Article begins by identifying and documenting the range offederal in forma pauperis practice. In granting IFP status, the federalcourt waives the initial filing fee and sometimes confers other benefitson the litigant, including assistance effectuating service of processand even appointed counsel. (4) Beyond these concrete benefits, IFPstatus instantiates the federal system's purported commitment notto let a litigant's indigence interfere with the merits of thatlitigant's claims. However, 28 U.S.C. [section] 1915(a), as well asthe tradition of local rules and court practices enabled by the FederalRules, gives judges significant discretion in determining whether alitigant's poverty warrants IFP status. That discretion, in turn,has produced a dizzying degree of variation across and within theninety-four U.S. district courts.

In forma pauperis motions do not equip federal judges with thetools to accurately assess a movant's poverty, (5) and federalcourts differ in the information they collect about litigants'financial situations. Part I demonstrates how this lack of uniformityacross and within courts creates disparate practices in the federaljudiciary. (6) The coding summarized in Part I highlights thesedifferences, with many forms requiring more information than necessary.

Also, few federal courts provide back-end guidance for judgespresented with an in forma pauperis motion. With no standard ex ante,judges are left to determine how much income is too low, how manyexpenses are too high, and how many assets are too few. (7) Moreover,computing a movant's income and expenses is arithmetic and does notdemand the skills of an Article III judge.

As for the litigants, the federal courts unnecessarily ask poorpeople to plead too much to prove their poverty. Some of the IFP formsbetray a wealthy person's conception of income--asking would-belitigants to appraise their jewelry and artwork, to divulge their stockholdings, and to itemize their inheritances. A poor litigant should notneed to plead the make and model of any vehicle in their possession ordisclose their educational attainment. A judge need not require, as oneof the forms used by the Judicial Conference of the United States does,a litigant to list income from a dozen categories, fifteen types ofexpenses, and ten types of assets. Such a cumbersome, standardlesspleading system needlessly burdens judges and litigants.

Part II disproves that this degree of unreliability is inherent inpoverty pleadings. Indeed, one cannot fully appreciate the flaws infederal practice until surveying the landscape of poverty determinationsoutside of the federal courts. By comparing federal IFP determinationsto other poverty determinations, the Article illustrates that federalpractice need not be so arbitrary. Federal and state agencies routinelydetermine the poverty of applicants. (8) These agencies apply meanstests to determine whether an individual or family is eligible forgovernment assistance, including Medicaid, food assistance, and welfare.(9) Federal courts should follow suit. To be sure, it is unusual toliken federal courts to welfare agencies, but in this context, bothinstitutions are engaged in an identical enterprise--attempting todistribute a means-tested benefit in a rational, efficient manner. Theconstitutional origins and distinct functions of courts and agenciesshould not prevent us from comparing how they make those povertydeterminations.

For those who would prefer to compare federal courts only to othercourts, state court systems serve as ready-made analogs. State courtsuse a variety of mechanisms to make poverty determinations. (10) Infact, these courts use rules similar to those of human-services agenciesthat the federal courts should also adopt. For example, some statecourts already use bright-line income tests tied to the federal povertyguidelines and adjunctive eligibility (i.e., qualifying for one programas a presumption of qualification for another). These agency andstate-court practices highlight the rudimentary nature of our federalsystem.

Part III draws on these lessons from federal law and state-courtpractice to propose a coherent federal IFP standard. This nationalstandard would not only bring IFP status in line with federal law andstate-court practice but also better promote access to justice for poorpeople. It would build on the lessons of other poverty determinations byclarifying an income threshold and allowing for adjunctive eligibility.(11) Federal judges could save valuable time by streamlining this fairlyministerial function, and the new IFP standard would preserve theirdiscretion in cases where the court determines that paying the fees andcosts would cause the litigant substantial hardship. To adopt the newstandard, Congress could amend the federal IFP statute, the JudicialConference could amend the Federal Rules or propose a new form, orindividual district courts could implement the new standard. While thereare potential drawbacks to a uniform national standard, including thatit could stifle variation based on regional differences in costs ofliving, the proposal advanced in this Article would reduce the arbitraryqualities of federal IFP determinations in ways that benefit judges andlitigants alike.

Beyond the details of federal IFP practice, much procedurescholarship considers additional protections for poor litigants (andaccess-to-justice reforms generally) to be at odds with the demands ofefficient judicial administration. Due process values are understood tobe in conflict with preserving judicial resources. In Part IV, theArticle shows why the trade-off between procedural protections andjudicial resources is not preordained. (12) It suggests that theseprinciples should not always be treated as "either/or" designchoices, but rather as mutually reinforcing features that legitimize aprocedural system. (13) The Article reconciles this seeming conflict ina specific instance: a poor litigant's first step into federalcourt.

In the process, the Article models a different approach to thestudy of procedure. By concentrating on an admittedly obscure procedure,the Article stresses the lived reality for litigants when they seekredress in federal court. In doing so, this project emphasizes not theappellate courts of the federal system but rather the trial courts thatare, for most, the face of justice. The Article dwells on one of therun-of-the-mill procedures that litigants encounter every day in thefederal system. Put simply, this is procedure not from the top down butfrom the bottom up.

The Article makes its case in four parts. Part I uncovers the majorflaws in current in forma pauperis practice in federal court. Bycollecting and coding all IFP forms currently in use in the U.S.district courts, the Article shows how these IFP determinations areirrational, inefficient, and invasive. Part II demonstrates that theproblems in federal practice are not inevitable in a large court systemor even characteristic of poverty determinations. Federal law containsother poverty determinations that are more straightforward than currentIFP practice. State courts also offer useful guidance for the federalsystem. Part III proposes a new standard, one that would bring IFPdeterminations in line with federal law and better promote access tojustice for poor Americans. The Article lays out how Congress, theJudicial Conference of the United States, or individual district courtscould adopt this proposal. Part IV connects the challenges associatedwith federal practice in this area to the longstanding conversationamong proceduralists about balancing the need to protect access to thecourts for indigent litigants and the need for rationalized judicialresources. The Article concludes with an exploration of how thisscholarship informs the study of civil procedure, suggesting that thoselitigants who have few resources may have the most to teach us about howadjudicatory systems function (or fail to) in our inegalitarian age.

I. IN FORMA PAUPERIS PRACTICE IN FEDERAL COURT

What must a poor person plead for a federal court to waive fees andcosts? How poor must that person be? Common law courts have longpossessed the authority to waive fees and costs for indigent litigants,and Congress has authorized federal courts to do so for 125 years. (14)The precise practices that have emerged from that authority warrant acomprehensive study. (15) This Part begins by sketching the historicalcontext of the modern federal in forma pauperis statute. It touchesbriefly on the IFP regime in the United Kingdom before moving to thefederal IFP statute in the United States. It then details the benefitsthat currently flow from this status. The bulk of the Part, however,relates the results of a survey of the ninety-four federal districtcourts' current IFP forms and practices.

A. The History of In Forma Pauperis Status in Federal Court

Although this Article focuses on the federal statutory regime of informa pauperis in the United States, special treatment of poor litigantswas a feature of common law legal systems long before the federalstatute was first enacted in 1892. (16) This historical backgroundunderscores the longstanding aspiration for courts to furnish aprocedural system that does not distinguish between the rich and thepoor.

There is some evidence that at common law there was a right to sueregardless of ability to pay and that statutes merely regulated theright of an indigent to sue. (17) Regardless of its provenance, though,the in forma pauperis right in England can claim uncontested authoritysince 1495. (18) In effect for four centuries, England's in formapauperis statute absolved a plaintiff of paying the typical fees andcosts associated with a lawsuit. (19) A plaintiff had to submitdocumentation to the court from two attorneys certifying that his suithad merit. (20) Starting in the 1880s, in forma pauperis practice wasenshrined in court rules. In 1949, the British Parliament created whataspired to be a comprehensive system of legal aid and, in the process,abolished the right to litigate in forma pauperis. (21)

In 1892, the U.S. Congress passed the first statute authorizing thefederal courts to allow plaintiffs to proceed in forma pauperis. Thestatute provided that "any citizen of the United States, entitledto commence any suit or action in any court of the United States, maycommence and prosecute to conclusion any such suit or action withoutbeing required to prepay fees or costs, or give security therefor"if the plaintiff submitted an affidavit that "because of hispoverty, he is unable to pay the costs" and that his case hasmerit. (22) The statute required that the court's officers wouldserve process in these cases and authorized the court to request anattorney "to represent such poor person, if it deem[ed] the causeworthy of a trial." (23) To guard against false statements andfrivolous cases, the statute also authorized courts to dismiss any caseif "the allegation of poverty is untrue, or if said court besatisfied that the alleged cause of action is frivolous ormalicious," and it made a fraudulent in forma pauperis statementpunishable as perjury. (24)

The House Report for the eventual statute suggests that Congresswanted to ensure that indigent plaintiffs possessed the same proceduralrights as plaintiffs who could afford to pay the fees and costs oflitigation. (25) The Report described the legislation as an attempt tosolve the problem where "persons with honest claims may bedefeated, and doubtless often are, by wealthy adversaries." (26)The legislative history also suggests that Congress wanted to "keeppace" with states that had adopted similar policies. (27)

While Congress focused on providing poor people with initial entryto the federal courts, it did not consider whether courts could recoupthe waived fees and costs in the event of the plaintiff's recovery.Federal courts were left to interpret the statute and its eventualamendments. (28) Over the next century, the courts wrestled with severalquestions, including whether in forma pauperis status was a mandatory ordiscretionary benefit conferred by the court, how to penalize fraudulentclaims to this status, and which litigants in which proceedings couldplead that status.

As to the first of these questions, federal courts are not requiredto grant in forma pauperis status. Rather, the decision to grant alitigant's motion is in the court's discretion. In Kinney v.Plymouth Rock Squab Co., the Supreme Court held that judges are notrequired to grant requests for assistance in forma pauperis because thestatute merely conferred the authority to do so when the claim was"sufficiently meritorious to justify the... request." (29)

Furthermore, since the federal statute was enacted, Congress hasauthorized the federal courts to dismiss claims filed in forma pauperisif the action is frivolous or malicious. The Supreme Court reasoned inNeitzke v. Williams that a litigant who bore no costs also lacked"an economic incentive to refrain from filing frivolous, malicious,or repetitive lawsuits." (30) However, aside from dismissal of thesuit, the only potential sanctions for a fraudulent in forma pauperisaffidavit are prosecution for perjury and assessment of costs. (31) Thestatute further provides that "the court shall dismiss the case atany time if the court determines that... the allegation of poverty isuntrue." (32) Mistakes made in good faith cannot save an erringmovant. (33)

Congress has amended the federal IFP statute several times since1892, extending the status to defendants, (34) appellants, (35) andnoncitizens. (36) It has also provided that the federal government wouldpay for records in criminal appeals (37) as well as transcript fees incivil and criminal appeals. (38)

One issue left unaddressed by these reforms concerned the status ofbankruptcy courts. Federal courts disagreed as to whether a bankruptcycourt was a "court of the United States" within the meaning of28 U.S.C. [section] 1915 and therefore had the power to grant a motionto proceed in forma pauperis. (39) Those that held that in formapauperis status did not apply to bankruptcy proceedings relied on UnitedStates v. Kras. (40) There, the Supreme Court held that, despite the IFPstatute, all parties were required to pay commencement fees for filing apetition for bankruptcy. (41) In 2005, however, Congress authorized adistrict or bankruptcy court to waive filing and other fees in personalbankruptcy cases for individuals who are unable to pay. (42) As will bediscussed below, in creating this parallel feewaiver provision forChapter 7 debtors, Congress set an income threshold of 150% of thefederal poverty line. (43)

While this Article's focus is on nonprisoner civil litigation,it is worth briefly detailing the only time that Congress restricted IFPstatus in prison litigation. In 1996, Congress passed the PrisonLitigation Reform Act (PLRA), (44) citing the tide of"substantively meritless prisoner claims that have swamped thefederal courts." (45) Congress enacted the PLRA to "filter outthe bad claims and facilitate consideration of the good." (46) Thestatute was designed "to reduce the quantity and improve thequality of prisoner suits." (47) Yet in addition to anadministrative exhaustion requirement (48) and a "threestrikes" rule to limit lawsuits brought by prisoners who had atrack record of frivolous cases, (49) the PLRA created a"prescreening" regime. (50) As drafted, that regime threatenedto upend longstanding federal practice for prisoner and nonprisonerlitigants alike. As amended by the PLRA, 28 U.S.C. [section] 1915(a)(1)now reads:

[A]ny court of the United States may authorize the commencement,prosecution or defense of any suit, action or proceeding, civil orcriminal, or appeal therein, without prepayment of fees or securitytherefor, by a person who submits an affidavit that includes astatement of all assets such prisoner possesses that the person isunable to pay such fees or give security therefor. (51)

The insertion of the word "prisoner" raised the issue ofwhether Congress intended to restrict in forma pauperis proceedings onlyto incarcerated persons. Given that the PLRA was intended to limitprisoner litigation, reading the text literally would create the oddresult that prisoners could file cases without prepayments of fees, butnonprisoners could not. As a result, courts have considered this ascrivener's error. (52)

The federal courts continue to wrestle with how to interpret 28U.S.C. [section] 1915 in light of the PLRA. (53) Prisoners who litigatein federal court face barriers apart from IFP determinations. Suchbarriers, as well as the prisoners' IFP determinations, are worthyof more study, but to include them in this Article would muddle itsanalysis of federal civil practice. As a result, this Article'sanalysis applies to prisoner litigants only insofar as it discussesbarriers that both prisoner and nonprisoner litigants face, includinghaving to plead one's poverty.

The history of IFP practice in the United Kingdom and the UnitedStates suggests that these common law systems have consistently soughtsome procedural mechanism to reduce the likelihood that alitigant's lack of resources impinges on that person's abilityto press their case in court. Indeed, both of these countries'court systems have sought to use IFP determinations as a gatekeepingfunction to determine which parties should receive a subsidy tolitigate. The next Section describes the benefits that IFP statusconfers.

B. The Benefits of In Forma Pauperis Status

The federal in forma pauperis statute allows a litigant to pursue acase in federal court without paying filing fees and costs provided thatthe litigant submits an affidavit demonstrating an inability "topay such fees or give security therefor." (54) It is worthenumerating briefly which benefits flow from IFP status and which donot. (55) As mentioned above, Congress sets the filing fee--currently at$350. (56) The Judicial Conference can impose "additionalfees," and it has added a $50 "Administrative Fee for Filing aCivil Action, Suit or Proceeding in a District Court." (57) Thedistrict court's waiver of these fees is the best-known benefit ofIFP status.

There is some disagreement in the circuits as to which fees andcosts are and are not waived for the IFP litigant. (58) Some districtcourts will waive fees associated with electronic filing and otherrecords and transcripts, (59) but others do not consider dailytranscripts to be part of the "fees and costs." (60) Discoverycosts, such as those from deposing witnesses, are typically excluded aswell. Despite Rule 54(b)'s "presumption that the losing partywill pay costs," the Rule nonetheless "grants the courtdiscretion to direct otherwise." (61) One recognized situationwhere courts either reduce or deny costs is when "the losing partyis indigent." (62) However, the Fourth, Tenth, and EleventhCircuits have held that a district court can assess costs against anunsuccessful IFP litigant. (63) Relatedly, some local rules allow thecourt to deduct fees and costs from recovery or at the close oflitigation. (64)

Beyond the waived filing fee, IFP litigants receive other benefits.First, in many district courts, when a federal judge grants an in formapauperis motion, the court will direct the U.S. Marshal to serve processon the indigent litigant's adversary. (65) In 1983, the JudicialConference added language to Rule 4(c) retaining service of process bythe Marshals Service for in forma pauperis plaintiffs. The purpose ofthe 1983 amendments was to relieve the U.S. Marshals of the burden ofserving process in all cases. (66) Furthermore, unlike the waived fees,the court may assess the costs of service if the plaintiff prevails inthe litigation. (67)

Of all the benefits conferred by IFP status, appointment of counselis arguably the most consequential. (68) Some district courts appointcounsel in civil actions for IFP litigants. (69) It is difficult,though, to know how many courts engage in this practice or how oftenthey do so. There is no constitutional, statutory, or local rulerequiring such an appointment.

Finally, in forma pauperis status in the district court typicallyfollows a plaintiff if she appeals. The Federal Rules of AppellateProcedure provide that when a litigant is granted IFP status in thedistrict court, a timely motion for leave to proceed in forma pauperison appeal must generally be granted. (70) If a district court dismissesa frivolous case under 28 U.S.C. [section] 1915(d), that litigant mustreapply to the appellate court to proceed in forma pauperis on appeal,since the finding of frivolousness is viewed as certification thatappeal is not taken in good faith. (71) Typically, IFP status alsowaives the fees collected by the clerk of the district court when alitigant files a notice of appeal.

In sum, by granting in forma pauperis status, the federal districtcourt waives the initial filing fee of $400 and sometimes confers otherbenefits on the litigant. While not all the costs associated withlitigation are waived for IFP litigants, the possible benefits to thesuccessful movant--the waived filing fee, assistance effectuatingservice of process, waiver of other litigation costs, and even appointedcounsel--are substantial. (72) The fact that this status follows thelitigant on appeal makes it an even more important determination at thetrial-court level. The next Section analyzes how the ninety-four U.S.district courts structure a litigant's poverty pleading.

C. The Flaws of Federal In Forma Pauperis Practice

As mentioned, the federal IFP statute and Rule 83 afford federaljudges broad discretion in determining whether a litigant can proceed informa pauperis. Based on the first complete analysis of all the IFPforms and financial affidavits used in the ninety-four U.S. districtcourts, (73) this Article finds that current federal practice isinconsistent across districts and, because of the lack of standards forinterpreting the various forms, within them as well. This Section laysout the survey of the district courts and identifies the flaws of thestatus quo.

i. Summary Statistics of the In Forma Pauperis Forms

Twenty-two district courts use the AO 239, the long-formapplication created by the Judicial Conference, either alone or inconjunction with a court-specific affidavit. (74) Consisting of fivepages, the AO 239 asks movants to list sources of income across twelvecategories, expenses across fifteen categories, employment history forthe past two years, any cash on hand, assets, money owed to the litigantor the litigant's spouse, and dependents. A movant must alsoindicate whether she "expect[s] any major changes" to herincome, expenses, assets, or liabilities in the next year; whether shehas spent or will spend any money for expenses or attorneys' feesin conjunction with the lawsuit; and her age and years of schooling.

Thirty-seven district courts accept the shorter AO 240 form. (75)At two pages, the AO 240 covers much of the same ground as the AO 239form, but in less detail. Eighteen district courts accept itexclusively, while eight accept both the AO 239 and the AO 240 forms.(76) The remaining forty-six district courts have created and use theirown forms and/or affidavits. (77) Of these courts, eleven have formsthat resemble the AO 239 (78) and fourteen have created and use formsresembling the AO 240. (79) However, in each of these forty-six districtcourts, there is substantial variation both in terms of the types ofquestions asked and the level of detail required. Indeed, this survey isan illustrative example of the variation that follows from a federalsystem that permits local rulemaking. (80)

2. The Arbitrary Nature of Federal In Forma Pauperis Practice

A poverty determination, often referred to as a means test insocial policy, seeks to accurately target a benefit to those who needit. Irrationality is a definitional vice in public benefits--itundermines a program's legitimacy by arbitrarily excluding some whoqualify for the program's services. As the survey of theninety-four district courts' forms and affidavits shows, the widevariety of information elicited by the courts and the lack of standardsagainst which to interpret that information combine to create anirrational in forma pauperis regime.

All the district courts that use their own forms inquire into thesources of the movant's income. All federal IFP forms share somebasic similarities, asking the movant about her current employment, ifany, and her wage income. Some ask very few questions, like that of theNorthern District of Indiana, which asks if the movant or themovant's spouse is employed, if they have money from some othersource, and for the value of their assets. (81) The form subsequentlyinquires, "If you have no income listed above, explain how you (andspouse, if married) obtain food, clothing, shelter, and othernecessities of basic living." (82) Other district courts askdetailed questions about sources of income. Some ask about retirementpayments, including Social Security, pensions, and annuities. Eightdistrict court forms ask detailed questions about public assistance,(83) and several ask about cash on hand. (84) The Western District ofNew York asks whether someone has filed for bankruptcy in the pastdecade. (85) The District of Nevada and the District of Pdiode Islandask if financial resources have been transferred to someone elserecently. (86) All district courts inquire as to the litigant'sassets, but discrepancies emerge there too. The Southern District ofAlabama asks about "automobiles, boats, [and] motor homes" aswell as the "Make & Model" of each. (87) Indeed, some ofthese forms betray a rich person's idea of assets, asking litigantsabout inheritances, jewelry, artwork, and stocks. (88)

A few district courts identify threshold amounts, which permitmovants to omit any source of income or asset under that threshold. TheNorthern District of Illinois asks if anyone living in the same home asthe movant has an income of more than $200 a month. (89) That court alsoasks the movant to list only those assets valued at more than $1,000.The Southern District of New York asks if the movant "or anyoneelse living at the same residence... received more than $200 in the past12 months from any of the [listed] sources." (90) Such a practicefrees the movant from having to count every penny in her possession.However, these threshold amounts are used by only a handful of districtcourts.

While most district court forms follow the conventions for expensesof the AO 239 and AO 240 forms, others diverge. For example, theNorthern District of Florida asks litigants to list monthly gas expensesfor their cars. The District of Connecticut asks litigants about anymoney owed to doctors, hospitals, or lawyers. (91) Five district courtsdo not ask about the applicant's average expenses and bills. (92)

Some variations across district courts reflect the particularcirc*mstances in that given state. Understandably, the District ofAlaska asks about the Alaska Permanent Fund Dividend, which functions asa negative income tax for the state's residents. (93) It is notsurprising that no other district court would ask about Alaska dividendpayments. It is surprising, though, that the district court in PuertoRico is the only district court that asks the movant whether she has anyincome from horse racing and gambling. (94)

District courts also ask questions that fail to fit neatly into thecategory of income or expenses. For instance, in addition to the courtsthat use the AO 239 form, eighteen district courts ask a movant todisclose any contact and/or payments to an attorney or other legalprofessional. Three district courts ask the movant if she has paid orwill be paying anyone other than an attorney (such as a paralegal or atypist) any money for services in connection with this case, includingthe completion of this form. (95)

In addition to the district courts that use the AO 239 form,fifteen district courts ask about the movant's years of schooling.A litigant's schooling may bear on whether that litigant is capableof pursuing the litigation pro se, but it should not necessarily impacta court's determination of her financial situation. Other formscontain details that are oddly out of date, (96) while the EasternDistrict of Oklahoma is the only district court that requires anotarized form. (97)

What does this jumble reveal? A survey of federal in forma pauperispractice exposes discrepancies across and within districts, a lack ofsophistication in assessing the movant's indigence, and a potentialfor inaccuracy. The range of the categories of questions asked by thevarious district courts as well as the discrepancies within thecategories suggest a cacophony of practices among the ninety-fourdistrict courts. (98)

These discrepancies are difficult to justify on the grounds ofjudicial administration or geographic diversity. For example, althoughgeographic diversity might justify variation across states, it does noteasily justify variation within states. Alabama, California, Florida,Illinois, Louisiana, Ohio, Oklahoma, Pennsylvania, Texas, Virginia,Washington, West Virginia, and Wisconsin have multiple district courts,but some of the district courts in these thirteen states ask whether anindividual receives public assistance while other district courts inthese states do not. For what reason would some district courts not wantinformation about a litigant's receipt of public assistance whenothers in the same state would want that information?

The degree of difference across district courts undermines thefederal system. Within states, district courts ask different questionsabout, for example, the sources of a litigant's income and thevariety of a litigant's expenses. These questions have little to dowith a litigant's ability to pay. District courts also vary in howmuch information they demand from movants, asking questions with varyingdegrees of specificity.

3. An Inefficient Procedure for Judges

In addition to allowing discrepancies across district courts,current federal practice permits significant intradistrict variance inIFP determinations." All the forms currently in use in the federalcourts--the AO 239 form, the AO 240 form, and thedistrict-court-specific forms--leave judges with no benchmark fordeciding how much income is sufficiently low, how many expenses or debtsare sufficiently high, and how many assets are sufficiently few. With noarticulated threshold on any in forma pauperis form, judges mustidentify some means test (such as the federal poverty guidelines (100))or create their own. (101) Few federal courts provide any guidance forjudges presented with an in forma pauperis motion. (102)

This status quo is particularly troublesome in any district courtmade up of several judges. In a court like the Northern District ofIllinois with thirty district judges and several magistrate judges,differences in a judge's approach to in forma pauperis motionscould lead to disparate outcomes in litigation. Even those who woulddefend different indigence determinations across district courts mightbalk at defending inconsistent determinations within a single court.Some judges might use 100% of the federal poverty level (FPL) as theirthreshold. Others will use 200%. Some will simply have their law clerksreview the forms and decide based on the information provided. (103) Inthat sense, even if each of the ninety-four district courts used eitherthe AO 239 or the AO 240 form, federal in forma pauperis practice wouldstill be far from uniform.

According to some district courts, "a plaintiff's incomemust be at or near the poverty level." (104) Others have concludedthat the applicant must show that he cannot "both provide himselfwith the necessities of life and pay the costs of litigation."(105) The Supreme Court has held that an applicant need not be"absolutely destitute" to qualify for IFP status. (106) Somecourts, though, have emphasized that this status is targeted at thosewho are "truly impoverished." (107)

Even if the Judicial Conference or local rules were to instructfederal judges to use a means test tied to the federal poverty level, itwould not be clear how to use some information requested on the forms.For example, some federal judges may look at the receipt of publicassistance as evidence of a movant's indigence, while other federaljudges might look at the same movant's income from publicassistance as freeing that movant up to pay the filing fee. (108)

Thus, even if all district courts were to decide tomorrow to adoptone form, such as the AO 240, federal in forma pauperis practice wouldremain irrational because it would still fail to provide federal judgeswith any standards by which to interpret the forms. With no guidelinesfor judges to follow, the federal system merely asks several questionswithout showing judges how to use the answers to those questions inmaldng the in forma pauperis determination.

Aside from its arbitrary variation, federal IFP practice is also aninappropriate use of a federal judge's time. (109) Computing amovant's income and expenses is arithmetic and does not demand theattention of a federal judge. Currently, federal judges must makecomplicated, arcane poverty determinations--often reconciling a dozencategories of income with a dozen categories of expenses. Suchdeterminations are not, by their nature, adjudicatory. Federal judgescould take back some of their time by streamlining a fairly ministerialfunction.

Furthermore, this inefficiency makes it plausible to think thatmany federal judges and their clerks do not engage in a carefulevaluation of the information provided on the IFP form. Such inattentionwould render the collection of the information in the first place allthe more pointless. In fact, this insight may explain why some districtcourts direct in forma pauperis applications to a particular judge oreven to staff in the clerk's office. (110) Two of the districtcourts with the highest number of civil filings manage in forma pauperispleadings differently. The Southern District of New York runs IFPapplications through the Clerk's Office, whereas the NorthernDistrict of Illinois treats IFP applications like other pleadings,channeling them through an individual judge's chambers. (111) Thissorting of litigants based on ability to pay might raise other, evenconstitutional, questions. (112) Even a district court that relies moreheavily on judiciary staff for IFP determinations would save time andimprove accuracy with the test proposed later in this Article.

Judges either take IFP determinations seriously or they do not. Ifthe former is true, the system is arguably inefficient. If the latter,then there is little reason to collect all this information and thereare significant accuracy gains to be had. Especially in the face ofpersistent criticisms of the increasing demands on federal trialjudges' time and resources, (113) federal judges should use a morestreamlined, sophisticated test to determine whether an IFP movant issufficiently poor. Such a test would free judges to focus on otheraspects of civil litigation.

4. An Invasive Procedure for Litigants

Current federal practice needlessly burdens not only judges butlitigants as well. All the federal in forma pauperis forms are invasive.Asking movants to itemize every source of income, every expense, everyasset, and their years of schooling is demeaning. Even if an in formapauperis form is precisely targeted, poor litigants are being asked toomuch to plead their poverty.

Consider a working parent who believes she was fired from her jobbecause of her gender. She seeks to bring a Title VII claim against heremployer. Because her income is below the federal poverty level, she isable to secure representation through a local legal aid office. She alsobegins to receive food assistance to supplement her lost wages. Afterfiling a complaint with the Equal Employment Opportunity Commission, shecould file her claim in Arizona state court, where she wouldautomatically receive IFP status. However, if she filed that same TitleVII case in the U.S. District Court of Arizona, she would first need tofill out the AO 239 form. To do so, she would have to swear underpenalty of perjury to her sources (and amounts) of income across twelvecategories, expenses across fifteen categories, employment history forthe past two years, any cash on hand, any assets, and debts owed to her.She would have to divulge how many years of schooling she has had. Afterengaging in such an invasive process, this litigant may receive IFPstatus or she might not. A federal judge could interpret her receipt offood assistance and her employment history as evidence of her ability toafford the filing fee and the concomitant costs of the litigation. Adifferent judge in the same court could look at that same evidence asreasons to grant IFP status.

To accurately determine a litigant's poverty, a court need notrequire a litigant to answer five pages' worth of questions anditemize sources of income, expenses, assets, and debts across forty-twocategories for herself and members of her household. Nor is such acumbersome pleading process necessary to deter fraud. Courts alreadypossess tools to encourage truthful statements from litigants. Asdescribed in Part I, any litigant who applies to proceed in formapauperis signs an affidavit "under penalty of perjury that theinformation below is true" with the acknowledgement that "afalse statement may result in a dismissal of [that litigant's]claims." (114)

Since these applications require a significant amount ofinformation, the applications function as a tax on litigation by poorpeople. However, not all potential IFP litigants will be in a similarposition to pay the tax. There will be some who find it easier to complywith the paperwork--whether through education, assistance from family orfriends, or simply having more time. Others who lack those resources orface other obstacles (such as a language barrier) may not. (115)

Finally, by making access to federal court cumbersome for poorlitigants, the current IFP regime risks shielding the federal courtsfrom cases and claims more likely to be brought by poor people. (116) Iffederal courts are making it too burdensome for poor people to bringmeritorious claims, one might expect that the federal courts are lesslikely to receive claims brought by poor people involving, for example,employment discrimination, police misconduct, and disputes overgovernment services. (117) As a result, there are costs and harms beyondthose to the particular litigants who may be deterred from accessing thefederal courts. If the litigants in federal court are unrepresentativeof the people who would otherwise bring federal claims, federaljurisprudence could itself become distorted. (118)

5. A Faulty Status Quo for the Federal Courts

This overview of current practice suggests an accretion ofnonsensical practices permitted by broad statutory language and enabledby the absence of rulemaking at the national level and the proliferationof local rules and forms at the court level. This status quo most likelypersists because of the judiciary's failure to view the system fromthe perspective of the litigants who must navigate it.

Some may defend current practice as a positive good--that federalcourts should ask dozens of questions of a litigant to understand howunderresourced that litigant truly is. Litigants should pay, they willargue, either with their money or their time. In fact, this notion ofimposing costs on poor people to access government services such as thecourts has a long tradition in the United States and elsewhere. (119) Bykeeping pleadings complicated, we encourage only those litigants who areconfident in their claims and committed to press those claims in court.

However, the Supreme Court has explained that the purpose of 28U.S.C. [section] 1915 is "to guarantee that no citizen shall bedenied an opportunity to commence, prosecute, or defend an action, civilor criminal, in any court of the United States, solely because...poverty makes it impossible." (120) The IFP process is not meant toserve as an additional, merits-filtering process that is not imposed onother litigants. Its purpose is simply to remove the barrier of povertyfor litigants who would otherwise bring a federal lawsuit. If one wantedsuch an additional process, then that merits screening should be basedon the actual merits of the claims, rather than on an irrational processthat makes litigants jump through procedural hoops to test theirconfidence in their claims.

Regardless of whether one thinks poor litigants should or shouldnot be subjected to probing questions about their life circ*mstances,the substantial variance created by the current system remains. Giventhat the federal courts ask for a wide variety of information fromlitigants, the courts cannot all be making determinations of theultimate issue (the ability to bring suit with one's own resources)accurately. Some are demanding too much, and some may be demanding toolittle. Both types of errors risk undermining the functions of federaldistrict courts.

If IFP determinations permit false negatives (i.e., poor peoplebeing denied IFP status), then the current system deprives indigentlitigants of meaningful access to the federal courts. Despite federallaw's longstanding commitment not to let a litigant'sindigence interfere with the merits of that litigant's claims, theIFP statute, as administered by the federal courts, is at substantialrisk of doing precisely that. If there are false positives (i.e.,nonpoor people being granted IFP status), then prevailing practice notonly deprives the federal system and sometimes the local bar of scarceresources but also fails to target this benefit to those who most needit. These false positives mean the federal judiciary is depriving itselfof resources--and not only by failing to collect fees. IFP statustriggers other resources in the federal system. For instance, using theU.S. Marshals to effectuate service of process takes the Marshals awayfrom other crucial functions. In those districts where appointment ofcounsel sometimes follows conferral of IFP status, federal judges aremobilizing the bar to aid poor litigants. Judges should do so only whena person could not otherwise afford an attorney.

Furthermore, if the success of an in forma pauperis motioninfluences, let alone determines, the outcome of the litigation, thenall proceduralists should be committed to making the federal courts moreaccurate in their IFP screening. Fortunately, federal law providesmyriad analogous means tests with which to compare IFP determinations.Comparing these determinations to the more standardized, albeitimperfect, means tests in other federal programs can help us envision amore coherent IFP test.

II. OTHER SOURCES OF POVERTY PLEADING

The federal judiciary currently measures the poverty of itslitigants in rudimentary ways. As outlined in Part I, federal practiceexhibits several flaws. However, these flaws are not inevitable or evencharacteristic of poverty determinations. Federal and state agencies andstate court systems routinely make poverty determinations. The federaljudiciary should look to and learn from other means tests in federallaw, including those administered by federal and state agencies. Federaljudges should also draw on the in forma pauperis rules of state courtsystems.

A. Means Tests in Federal Law

When the government, or any organization, devises a means test, itseeks to accurately target the benefit to those who need it. Federal lawcontains multiple means tests to determine whether an individual is poorenough to merit receiving public benefits, such as Medicaid, foodassistance, and welfare. Many of these means tests use the federalpoverty guidelines published by the U.S. Department of Health and HumanServices (HHS). The HHS poverty guidelines for 2019 for the forty-eightcontiguous states and the District of Columbia calculate the federalpoverty level on the basis of household size; a household of one iscurrently set at $12,490, while a household of three is set at $21,330.(121)

Many researchers and government officials have conceded that thefederal poverty guidelines need revision. (122) Originally created usingback-of-the-envelope calculations based on the U.S. Department ofa*griculture's Thrifty Food Plan, the poverty guidelines apply tothe lower forty-eight states and the District of Columbia. Theguidelines fail to consider government benefits like food assistance orlow-income tax credits. (123) Most of the means tests in federal law useincome thresholds tagged to HHS's federal poverty level (FPL). Itis telling, though, that none of the major federal public-benefitsprograms use the federal poverty level as the means test, but rather amultiple of that level such as 125% or 185% FPL. (124) For instance, theLegal Services Corporation (LSC), the federal agency that funds legalaid across the country, limits its grantees to serve only those whosehousehold annual income does not exceed 125% FPL. (125) As mentionedabove, when Congress enacted a fee-waiver provision for Chapter 7 filersin federal bankruptcy court, they established a threshold of 150% FPL.(126)

For the Supplemental Nutrition Assistance Program (SNAP), formerlyknown as food stamps, most households must meet both the gross and netincome tests, set at 130% and 100% FPL, respectively. (127) Gross incomerefers to income before any deductions are made. Net income allows forseveral deductions. (128) The Affordable Care Act established a newmethodology for determining income eligibility for Medicaid, known asModified Adjusted Gross Income, but that legislation's Medicaidexpansion was tagged to 133% FPL. (129)

Federal public assistance also makes use of "adjunctiveeligibility," a bureaucratic practice where qualifying for onepublic benefit serves as a presumption for qualifying for another. Forinstance, SNAP households have to meet income tests unless all membersare receiving Temporary Assistance for Needy Families (TANF) or thedisability benefit Supplemental Security Income (SSI). TANF recipientsoften automatically qualify for Medicaid. Such a shortcut takesadvantage of the administrative data of federal and state bureaucraciesto save the applicant and the agency time and resources.

In touting the merits of means tests for federal public benefits asa model for federal IFP determinations, this Article risks effacing someof the persistent problems with administering antipoverty programs. Tobe sure, irrationalities and inefficiencies persist in theadministration of federal public benefits. Occasionally, localities andstate governments erect barriers to access, and sometimes those policiesare struck down by courts. (130) Still, those practices should notobscure two basic features that the federal judiciary could borrow: ameans test tied to the federal poverty level and adjunctive eligibility.

As argued in detail in Part III, the federal judiciary should learnfrom these federal public-assistance programs in administering its ownmeans test for indigent litigants. The federal judiciary should use thepoverty guidelines published by the federal government, and it should doso in a manner that is consistent with other poverty determinations infederal law. SNAP, Medicaid, and the LSC all target their services tothose truly in need. Oddly enough, the federal government funds civillegal services based on the federal poverty guidelines, but it does notrequire that litigants receiving those services enjoy the benefits of informa pauperis status when their federally funded attorney files theircase in federal court. An adjunctive eligibility rule would fix thatdiscrepancy and others.

B. In Forma Pauperis Practice in State Courts

Moving past federal law, one can also compare the federal in formapauperis statute to the indigence rules that govern state courts in theUnited States. In this instance, both federal and state courts areperforming identical functions: assessing a party's financialsituation to determine whether that party merits a fee waiver and otherbenefits. A review of those state statutes and court rules offers a wayforward for a more coherent and efficient federal practice. (131)

Proceduralists and state courts themselves often look to thefederal system for procedural innovations. (132) Here, however, lookingin the other direction proves illuminating. There are good reasons toturn to state court systems for procedures that deal with low-incomelitigants. First, poor litigants are more likely to be found in statethan in federal court. (133) Second, several states' in formapauperis rules predate the federal system's commitment. (134)Third, the fifty state court systems, as well as the District ofColumbia's system, offer a range of models from which the federalsystem can borrow best practices.

Like 28 U.S.C. [section] 1915, many states' in forma pauperisstatutes have amorphous indigence standards. (135) Some states give IFPstatus to a litigant who is unable to pay the fee and still provide forherself and her family. (136) Other states' statutes and courtrules contain itemized categories of income and expenses in the statute.(137) However, several states administer more refined means tests fortheir in forma pauperis procedures. Twenty-six states use a means testtied to the federal poverty guidelines. (138) Most states that identifyan income threshold set it at 125% of the federal poverty line (139) orhigher. (140)

Several state court systems allow for adjunctive eligibility.Litigants who receive other means-tested public benefits areautomatically eligible to proceed in forma pauperis. Most state courtsystems that permit a litigant to prove her indigence through benefitreceipt include TANF, SSI, Medicaid, and SNAP among the qualifyingbenefits. (141) Some include less frequently available benefits such asGeneral Assistance, (142) while others single out means-testedveterans' benefits. (143) In fact, in some of these states, theAffordable Care Act's expansion of Medicaid, made optional by theSupreme Court in National Federation of Independent Business v.Sebelius, (144) has had the additional effect of maldng more litigantsautomatically eligible for in forma pauperis status. (145)

Some states sensibly align their in forma pauperis procedures withlegal aid. Eighteen states allow litigants represented by legal aidattorneys automatically to qualify for IFP status. (146) For instance,Minnesota allows for any litigant represented by a civil legal servicesattorney or a volunteer pro bono attorney to proceed in forma pauperis.(147) South Carolina allows for a similar mechanism for a litigant toplead her poverty, but it requires that litigant's attorney tocertify to the court that representation is provided through that legalaid organization or pro bono program and that the party is unable to paythe filing fees. (148)

Some states allow their judges to permit a partial filing fee forthose who wish to proceed in forma pauperis. (149) This option avoidsthe benefit-cliff problem, whereby those who fall just above thethreshold receive no benefits, in much the same way that otherpublic-benefits programs like SNAP have benefit amounts that taper offwith an increase in income. (150) Federal practice allows judges toassign partial filing fees, but this practice appears to be more commonin prisoner suits than in other cases. (151)

Putting these different features together, several states' informa pauperis rules offer an appealing model for the federal system.They offer the litigant four ways to plead poverty: (1) a bright-linemeans test pegged to the federal poverty guidelines; (2) adjunctiveeligibility through public-benefit programs; (3) eligibility throughlegal aid representation; and (4) a catchall determination that wouldpreserve some of the discretion of current federal practice. (152) Thesefour pathways would reduce the administrative burden for federal judgesand litigants as well as standardize and rationalize outcomes bytargeting in forma pauperis status to benefit the truly needy.

III. TOWARD A COHERENT IN FORMA PAUPERIS STANDARD

In a nation where half of households have an annual income of lessthan $62,000, (153) who should pay for the federal courts is an openquestion. One could imagine a pay-per-use system, a system that isfinanced entirely by general tax revenues, or, what is most likely, acombination of both. Rather than entering the debate about how best tofinance a court system, this Article fastens itself to the institutionallimits of the federal courts. (154) By binding itself to the federalsystem's commitment laid out in 28 U.S.C. [section] 1915, theArticle uses that statutory commitment of access for indigent litigantsas the baseline from which to analyze current federal practice. Takingseriously Congress's promise to provide access to poor litigants,this Part proposes a coherent in forma pauperis standard.

A. Designing a National In Forma Pauperis Standard for the FederalCourts

Federal courts should allow litigants to proceed in forma pauperisif they meet one of four conditions. First, any litigant whose netincome is at 150% of the federal poverty level and who has assets ofless than $10,000 should be considered indigent by a federal court. Thatincome calculation should include at least partial deductions fornecessary expenses like medical expenses, childcare, housing, andtransportation. Such an income threshold would be consistent with thefederal indigence standard for bankruptcy proceedings as well as withmeans tests for SNAP, Medicaid, legal aid providers, and many statecourt systems.

In calculating eligibility for in forma pauperis status, thefederal courts should also consider assets. LSC-funded organizationsmust set reasonable asset ceilings for eligible households. (155) Acourt should still look at a litigant's assets even if thatlitigant's income is below the federal poverty level. If a movantis low income but has significant assets that could be used to pay thefiling fee without hardship, those assets should be considered. The rulecould allow the court to look into whether a litigant has recently triedto reduce their assets to avoid using them for their litigation. (156)In practice, it.seems unlikely that the federal courts would see such alitigant, but to ensure accurate targeting, the federal rule shouldinclude an asset limit. That asset limit should exclude themovant's residence and vehicle, and should be limited to $10,000 inliquid assets.

The second way a litigant could proceed in forma pauperis isadjunctive eligibility through federal public-assistance programs.Today, public assistance is included as a source of income on most IFPforms. (157) As a result, a federal judge can just as easily use alitigant's receipt of federal food stamps to discredit her pleadingof poverty instead of as evidence of the litigant's indigence.Instead of counting benefit receipt as a source of income, federaljudges should follow the lead of various states and use it as abureaucratic shortcut to prove the movant's poverty. As mentionedabove, the federal judiciary could take advantage of the accuratescreening conducted by agencies administering federal public assistancewith little fear of fraud.

Third, along the lines of Minnesota, South Carolina, and otherstates, the federal courts could adopt a rule that litigants representedby a legal aid organization, including those funded by the federal LSC,can proceed in forma pauperis. (138) Such a rule would eliminate thecontradictory practice where a litigant might be needy enough to merit afederally funded legal services lawyer, but not needy enough for afederal court to waive fees and costs. As with adjunctive eligibilityfor public benefits, such a rule would shift the burden of determiningneed from the judges to legal aid organizations who must make thatdetermination in the first instance. Moreover, this rule would encourageunderresourced litigants to seek assistance or simply advice from theseorganizations, potentially cutting down on the litigants who proceed prose.

Finally, this new proposed standard would preserve thediscretionary authority of the federal courts. By providing a catchallcategory, a federal judge would still be able to permit a litigant toproceed in forma pauperis even if she could not prove her indigencethrough the three mechanisms outlined above. This discretionary categorywould allow judges to grant in forma pauperis status to an individualwho, for instance, is disqualified on the basis of income, but hassignificant expenses not included in the new means test.

There will be opposition to these proposed changes. One critique isthat this national standard would neglect differences in costs ofliving. Some may believe that the status quo allows, albeit haphazardly,for regional, state, and intrastate variations--a worthy design featurefor a country that spans a continent. In a related vein, discretion,some say, is a feature, not a bug, of the Federal Rules. (159) However,federal law is chock-full of means tests that apply nationwide and evenmore that apply to the lower forty-eight states. (160) That said, toaddress stark regional differences, the new standard could permitdistrict courts via local rule to increase the income means test to,say, 200% of the federal poverty level. In other words, the new standardcould allow courts to choose their own means test tied to the federalpoverty level so long as it exceeded 150%. Such an income threshold maybe more appropriate for areas where the cost of living is far higherthan the national average. Maldng such an upward adjustment permissibleamong districts sacrifices some of the uniformity across districts butwould use the suggested floor as a signal of reasonableness.Nevertheless, this option would also invite a district court to make aconsidered decision while still cutting down on the intradistrictvariance by requiring that judges in the same district use the samemeans test.

Others might argue that a uniform IFP standard deprives judges ofthe benefits of incremental, Burkean learning. (161) To be sure, anational standard could squelch some of this knowledge building.However, some features of the survey summarized in Part I suggest thatin forma pauperis practice is characterized not by considered reflectionbut by clerical drift: the failure to update forms that list defunctpublic-benefit programs, confusion in various clerks' offices as towhich form is currently accepted, and the lack of a record ofdeliberation on IFP pleadings in district courts or the JudicialConference. Moreover, a discretionary system does not necessarily meanthe decision maker must be deprived of standards, as is the case withthe status quo. Federal law often provides rules of decision to assistfederal judges, including in instances that are committed to thejudge's discretion. (162) This proposed national standard stillpreserves a judge's discretion by permitting the judge to grant IFPstatus even if the litigant is not eligible on the basis of income,adjunctive eligibility, or legal aid representation. This nationalstandard does not, however, permit judges to deprive poor litigants ofIFP status if they satisfy one of those three conditions. In a sense,the national standard guards against the particularly parsimonious judgeby relying less on districtor judge-specific learning.

Some might worry that adjunctive eligibility will lead to falsenegatives and false positives. Of course, there are individuals who arepoor enough to receive SNAP but do not want to receive assistance or mayhave recently been kicked off the program. One would not want a systemthat penalizes poor litigants who fail to enroll in antipovertyprograms. However, that would only be true if adjunctive eligibility wasthe only way to proceed in forma pauperis. As for false positives, suchinaccurate determinations are less of a concern for thepublic-assistance programs used in the proposed test. SNAP is currentlyexperiencing record-low levels of fraud. (163) Fraud rates amongbeneficiaries in the Medicaid and TANF programs are also low. (164)

Others might be concerned that linking IFP eligibility to otherprograms ties in forma pauperis determinations to the often-embattledAmerican safety net and the vicissitudes of congressional funding. IfCongress were to eliminate the LSC or to block grant Medicaid or SNAP,participation in those programs could plummet. (165) A criticism in thesame vein, but from a different angle, might posit that the UnitedStates is fitfully moving toward universalism in the provision ofold-age insurance, education, and healthcare. Some argue that meanstests are stigmatizing and should be abandoned altogether. (166) Yet,participation in these programs is more secure than the first criticismsuggests and far more widespread than the other criticism allows. As forthe concern about tying in forma pauperis determinations to otherfederal programs, attempts to block grant Medicaid and SNAP haverepeatedly failed since 1996, including in the last Congress. (167) Asfor the second, a substantial portion of the United States receivesMedicaid or SNAP. Medicaid pays for close to half the births in theUnited States. (168) One in seven Americans receive SNAP benefits. (169)

The sheer unpredictability of the current regime means that if thisArticle's proposal were adopted, some people who may have obtainedIFP status under the status quo would not. (170) But, if this proposalis sound, those are people who should not have received IFP status inthe first place (the false positives discussed earlier). In the bargain,truly poor people will not be blocked by the whims of a particularjudge. This Article proposes a streamlined system that sharply reducesthe number of people who are unjustly asked to pay the costs and fees oflitigation rather than a system that permits some litigants to avoidcosts and fees that they could afford to pay. Moreover, all thesecriticisms fail to see this proposal in light of current practice. Thesensible approach is not to maintain the status quo but to take allpossible steps to rationalize federal practice, making it more efficientfor judges and less demeaning for litigants. In light of the capriciousfeatures of federal practice, it would be ill-advised to escheweffective improvements simply because the improvements themselves arenot flawless. (171)

Finally, Congress, the Judicial Conference, and district courtscould adopt any of these proposed pathways without necessarily adoptingthe others. Each of the changes proposed above would ease theadministrative burden for the federal courts and reduce the likelihoodof discrepancies across and within district courts. Taken together, thisArticle's proposed national standard offers a no-wrong-doorsolution: litigants may receive IFP status through either a simplecalculation of net income and assets based on federal law, adjunctiveeligibility based on other federal programs, representation by a legalaid attorney, or the judge's discretion.

B. Adopting a National In Forma Pauperis Standard for the FederalCourts

Although we can now envision a more coherent IFP standard, thequestion is how to implement it. These institutional avenues are drivenby the federal judiciary's rulemaking framework established byCongress through the Rules Enabling Act. (172) Most proceduralists wouldwelcome a reasoned Supreme Court decision that fashions a workable,national standard for in forma pauperis determinations by construing 28U.S.C. [section] 1915(a). Yet it is unlikely we will see such adecision. The Supreme Court has insisted that those who seek to improvethe Federal Rules of Civil Procedure pursue changes not through judicialinterpretation, but through the rulemaking process. (173) As a result,there are three plausible ways to replace the status quo of in formapauperis determinations: (1) Congress could amend 28 U.S.C. [section]1915; (2) the Judicial Conference could amend (and the Supreme Courtcould approve) the Federal Rules of Civil Procedure and/or propose a newform; or (3) district court practice could converge as district courtsadopt the new standard. This Section considers each option in turn.

1. Congress

Congress could amend 28 U.S.C. [section] 1915 to contain thefollowing in forma pauperis standard (174):

A litigant may proceed in forma pauperis if:

a) That person's income after taxes and basic necessities,including, but not limited to medical expenses, childcare, housing, andtransportation, is 150% of the federal poverty level or less, and thatperson's assets are less than $10,000, excluding their home andtheir vehicle;

b) That person receives public assistance (including, but notlimited to the Supplemental Nutrition Assistance Program, Medicaid,Supplemental Security Income, or Temporary Assistance to NeedyFamilies);

c) That person is represented by a pro bono attorney, including onepracticing as part of a legal aid organization funded by the LegalServices Corporation; or

d) That person, in the sound discretion of the court, cannot paythe fees and costs without causing substantial hardship to the litigantor the litigant's family.

There are good reasons to start with Congress. First, federal informa pauperis practice is ultimately a creature of congressionaldesign. Second, the test at issue (how poor is poor enough) isfundamentally legislative. (175) Third, Congress sets means tests forother federal programs: the income thresholds for Medicaid, SNAP, andother programs are laid out in statute. This statutory fix would allowfor adjunctive eligibility in a manner consistent with other means testsin federal law and many state court systems. It would also set abright-line means test that would eliminate inter- and intradistrictdiscrepancies, directing federal judges to consult the best availablestandard: the poverty guidelines determined by the federal government.While streamlining eligibility standards, it would still allow judges togrant in forma pauperis status in the absence of public-benefitsparticipation or an arithmetic income calculation by preserving the"substantial hardship" standard that persists injudicialopinions. (176)

2. The Judicial Conference

Although Congress could amend the statute to create a more coherentin forma pauperis standard, such a statutory fix may not be forthcoming.(177) Instead, the Judicial Conference could propose, through the RulesEnabling Act, an amendment to the Federal Rules of Civil Procedure thatwould set out the four pathways included in the statutory languageabove. (178) Such an amendment would give federal judges the much-neededrules of decision for granting in forma pauperis status.

Although less desirable than a new rule, the federal courts couldalso create a more coherent system simply by producing a new form.Without amending the Federal Rules of Civil Procedure, the JudicialConference of the United States, through the Administrative Office,could replace either or both of the AO 239 and AO 240 forms with astreamlined in forma pauperis application. (179) Such a form wouldsolicit the information relevant to the determination set forth in thestatutory language outlined above. (180) A model form is included at theend of this Article. (181) Like the status quo, a new form would fail togive judges the rules of decision they need to interpret themovant's information. But by eliminating extraneous inquiries, suchas questions about jewelry and the make and model of a movant'scar, such a form may discourage a decision maker's caprice.Alternatively, the Judicial Conference could solicit interest fromindividual district courts in adopting this simplified practice as apilot district, as they have done with two recent projects. (182)

A new in forma pauperis form might appear quite quotidian,especially compared to the statutory fix proposed above. However, thereis a rich tradition of providing forms for federal litigants--one thatdates back to the creation of the Federal Rules of Civil Procedure.(183) Recent amendments to Rule 84 suggest that the Judicial Conferenceis backing away from its use of sample forms for pro se litigants. (184)Scholars have criticized the Judicial Conference's decision to doaway with the appendix of sample complaints and other forms. (185)However, many of the forms provided by the Judicial Conference in civil,criminal, and bankruptcy proceedings remain available to litigants.There is no evidence that the Judicial Conference is planning to do awaywith either the AO 239 or the AO 240 form. As a result, it would befairly simple for the Judicial Conference to propose improvements tothese forms along the lines suggested by this Article, or to replacethem with the model form provided.

3. U.S. District Courts

If Congress and the Judicial Conference fail to act, individualdistrict courts could promulgate their own local rule laying out thefour pathways outlined above: a means test, adjunctive eligibilitythrough public benefits, representation by a legal aid attorney, and adiscretionary test. Individual district courts could also adopt asimplified form like the one included in this Article--just as they havedecided to adopt the AO 239, the AO 240, or their own form. Everydistrict court may adopt one of the forms provided by the JudicialConference or create their own. That freedom at the court level could beused to stitch together a more coherent federal system. Admittedly, sucha method would allow interdistrict differences to persist in federalpractice: any district court that failed to adopt this form wouldcontinue to plod along the path of the status quo. (186) But thestreamlined standard described in this Section would sharply reduceintradistrict variance in any district court that adopts this standard.(187) As more district courts adopted this standard, the federal systemwould slowly but surely rationalize its in forma pauperis practice.

IV. BOTTOM-UP PROCEDURE

This Article's most basic aim is to document theinconsistencies and flaws in federal in forma pauperis determinationsand how they could be changed in such a way that promotes the interestsof the courts and litigants alike. Along the way, though, the Articleillustrates a different approach to the study of procedure.

A. A Different Perspective

In forma pauperis determinations are only a single feature offederal practice, but they are also the lived reality for thousands oflitigants who seek redress in federal court. This Article'semphasis, then, is not on the federal appellate courts, but on the trialcourts that hear most litigants' claims. It dwells not on therulings and reasoning of the highest court, but on the everydayprocedures that define civil adjudication in the federal courts. Inother words, this is procedural scholarship that begins not from the topdown, but from the bottom up. The Article models this mode of analysis,call it "bottom-up procedure," with a first attempt to chartthe range of federal in forma pauperis practice.

This perspective on civil procedure demands that we not lose sightof how people with few resources access systems of adjudication. Theseindividuals expose cracks in adjudicatory systems. (188) Resources tendto smooth bumps in the procedural road and enable parties to takealternative paths to resolve disputes. Those who lack resources areoften unable to seek out a different forum, and so they are most likelyto reveal the deficiencies in the system. By following poor litigantsthrough systems of civil justice, we can readily engage with norms andpractices that pervade trial courts but sometimes fail to rise to thecourts of review.

This perspective of bottom-up procedure is not confined to a singlemethodology. To make these norms and practices legible, scholars willneed to collect data on these practices through coding court materialsas this Article does; performing quantitative analyses of various stagesof litigation; (189) and interviewing clerks, judges, lawyers, and,perhaps most importantly, the litigants themselves. (190) Importantly,this approach should not displace existing procedural scholarship or itsattendant emphasis on aggregate litigation, the rise of alternativedispute resolution, and transnational applications of personaljurisdiction. (191) A bottom-up perspective may yield insights on thesetopics as well. Rather, the bottom-up perspective is an attempt toresist the instinct in the academy and the judiciary to equate federalcourts with the big case and parties with deep pockets. (192) Federalcourts are also fora for poor people.

Those who study civil justice can borrow from the fields ofcriminal and administrative procedure for examples of this bottom-upperspective on procedure. Scholars of criminal procedure often embracethis approach. (193) As Issa Kohler-Hausmann wrote in her recent studyof low-level criminal courts in New York City, a bottom-up perspectiveinsists that "legal actors always need to make a practicaldetermination about what the law means in the first instance inconstrained situations of choice." (194) The forces that constrainthese actors in criminal procedure constitute a logic of legal activityon the ground that "those at the top of various constitutiveorganizational hierarchies... [do not] necessarily intend, plan, or evenconsciously embrace." (195) An insistence on studying how courtsconcretize formal rules on a daily basis often leads to a focus onrun-of-the-mill cases, many of which involve people with few resources.

Criminal procedure's greater emphasis on the experiences ofpoor litigants in court may derive from the fact that that proceduralsystem requires appointment of counsel. This routine representation,guaranteed by Gideon v. Wain-wright and its progeny, in turn, makesprocedural lapses more evident. (196) A bottom-up approach recognizesthat the criminal process on the ground does not square with ourconstitutional commitments. (197) Criminal rules sound in a kind ofconstitutional formalism, lending themselves to a bottom-up perspective,whereas civil procedure, in its diffuse, technical nature, can appearless pliant. (198) Yet even administrative procedure, which resemblescivil procedure more than criminal procedure in its statutory regime,has made more of this bottom-up perspective than civil procedure has.Scholars of administrative adjudication, like their counterparts incriminal procedure, have attended to the processing of a large number ofclaims, its implications for dispute resolution, (199) and how itempowers street-level decision makers. (200) Using the bottom-upapproach, scholars of civil procedure could borrow from these twofields.

B. Whither Civil Procedure?

In forma pauperis status is absent from the Federal Rules of CivilProcedure. Yet it is a salient aspect of federal practice for poorlitigants. (201) That this quotidian corner of civil procedure has goneunexplored for so long reflects, perhaps, the academy and thejudiciary's conception of the federal courts. (202) The federalcourts do not often concern themselves with how to borrow from the waysin which state courts and administrative agencies mete out justice tothe masses. This insufficient attention to the experiences and interestsof poor litigants has led to an underspecified accounting of access tojustice in the federal system.

This absence of attention on in forma pauperis rules and similarprocedures is all the more glaring because of the recent attentionscholars have directed at what they see as an increasingly degradedenvironment of civil procedure. They have observed various ways in whichthe quality of civil adjudication has declined in recent years,including the disappearing (203) and diminished (204) trial, the lack ofcounsel, (205) arbitration's displacement of adjudication, (206)the declining quality of appellate hearings, (207) and the fall of theclass action. (208) Some have drawn the field's attention to howthese procedural phenomena impact substantive law and, in turn, certainsubsets of civil litigants. (209) Some go so far as to say that theSupreme Court and the Judicial Conference have contributed to thisdecline because they are overly solicitous of the needs of wealthyinterests in civil litigation. (210)

In the context of those worrying trends, this Article is an oddfit. After all, the Article identifies a chaotic corner of federalpractice that is not new, but longstanding. Indeed, these baroque IFPdeterminations are an antiquated yet enduring feature of civiladjudication in America. Despite the scholarly alarm about the declineof civil procedure, this procedure, one directed by definition at poorpeople, has escaped notice.

This Article offers a way out. The multitude of laments reflects adesire to move from a degraded to a dignified procedure. This Articlemakes such a move. Although in forma pauperis status is only one aspectof federal practice, it illustrates how proceduralists might align civiladjudication in such a way that promotes reasoned judicialadministration and protects the interests of litigants.

Much of procedural scholarship considers additional protections forpoor litigants (and access-to-justice reforms generally) to be at oddswith the demands of rationalized judicial administration. The values ofdue process are understood to be in conflict with preserving judicialresources. Indeed, the Supreme Court's leading case on proceduraldue process, Mathews v. Eldridge, requires that courts balance theprivate interests of individuals with the probable value of additionalprocedure and the government's interests, which include the"fiscal and administrative burdens that the additional orsubstitute procedures]... would entail." (211) When the SupremeCourt decided Mathews, the Court and others were concerned with thecosts associated with imposing trial-like procedures on federaladministrative adjudication. However, that particular context has notstopped the Supreme Court and lower courts from relying on the test laidout in Mathews to determine the appropriate procedural protections forstate civil proceedings involving the termination of parental rights,(212) involuntary commitment, (213) maximum-security prisons, (214) andincarceration for civil contempt (215)--not to mention the federalprocedures governing the detention of American citizens in prisonsmaintained by the U.S. military. (216)

This Article rejects the rights/resources trade-off inherent in theMathews balancing test by proposing a procedure that better protects theinterests of litigants while still preserving judicial resources. Inshort, it proposes a procedure that reinforces both judicialadministration and access to justice. In doing so, the Article departsfrom conceptualizing judges as managers in competition with privatearbiters. (217) Such a solution suggests that in this area of civilprocedure, judges need not choose between preserving court resources andextending access to justice. Rather, in this instance and perhapsothers, judges can serve both goals in the federal system.

This Article, in part, urges judges to take back their time bystreamlining a specific, fairly ministerial function. Judges'skills are not always required to make IFP determinations. Federal lawhas created agencies that make poverty determinations as a matter ofcourse. Those determinations are routine and regular. Federal practiceshould build on those means tests in making IFP determinations. Federaljudges need not make complicated, arcane poverty determinations becausesuch determinations do not necessarily demand adjudicatory expertise. Itseems uncontroversial to assert that we should prefer that judgesadjudicate disputes rather than compute a litigant's resources.This proposal protects an Article III judge's unique attribute--thecapacity for reasoned, impartial adjudication. (218)

A streamlined, shorter form also makes the process moresophisticated and more accurate while preserving the dignity of poorpeople. By taking advantage of adjunctive eligibility and an ex antemeans test, this proposal would allow federal courts to preserve thedignity of IFP movants. A truly poor movant would not need to divulgeevery detail of her financial situation (and other details likeschooling) to receive IFP status. This Article's analysis of informa pauperis practice shows why the trade-off between proceduralprotections and judicial resources is not inevitable. It suggests thatthese principles should not always be treated as competing principles or"either/or" design choices, but rather as mutually reinforcingfeatures that legitimize a dignified procedural system. (219) ThisArticle reconciles that apparent conflict in a specific instance: a poorlitigant's first step into federal court.

In addition to reconciling access-to-justice andjudicial-administration commitments, this approach also alters theaperture of the access-to-justice lens. Often, the literature on accessto justice emphasizes the ways that legal rules and institutions denyentry to poor litigants in the first instance or push them out of courton a technicality. (220) However, this Article suggests that access tojustice should include the ways in which poor litigants are treated oncethey enter the civil adjudicatory system. Put differently, suppose alitigant has a meritorious claim but also must clear bureaucratichurdles in order to pursue that claim. And suppose those hurdles areonly put in the way of litigants who are poor. That situation, whichdescribes IFP determinations at a certain level of generality, should beconsidered an access-to-justice problem. In this light, IFPdeterminations are yet another barrier in the realm of access tojustice, but one that scholars have failed to see as such. A bottom-upapproach to procedure expands the concept of "dignity values,"which have typically been seen as "reflecting] concern for thehumiliation or loss of self-respect which a person might suffer ifdenied an opportunity to litigate," to include instances where aperson is given the opportunity to litigate, but must do so in a waythat is demeaning and irrational. (221)

A focus on how people with limited means conduct litigation mayalso alter ongoing conversations among proceduralists. (222) Forexample, while bankruptcy procedure is thought of as a subset of civilprocedure, a bottom-up approach to both civil and bankruptcy proceduremay highlight meaningful discrepancies. Indeed, for bankruptcyproceedings, the topic of in forma pauperis status already raisesinteresting questions. Why, for example, did Congress create a parallelindigence determination for Chapter 7 debtors that embraces abright-line means test? Is there some feature of bankruptcy proceedingsthat demands such a means test that other civil adjudication lacks ? Putanother way, should the federal courts treat poor people differently ifthey are in bankruptcy proceedings as opposed to other civil litigation?If so, in what ways?

A bottom-up approach to the study of civil procedure could helpscholars bridge conversations in civil procedure with those in otherprocedural domains like criminal and administrative adjudication. (223)For instance, the line of inquiry for bankruptcy procedure laid outabove could also be extended to criminal procedure. Rather than treatingthose doctrinal boundaries as impermeable, why not research poorlitigants across procedural domains, civil and criminal? (224) Oneapplication of this approach could put court fees in civil litigation inconversation with the renewed scholarly interest in bail. (225) Thisapproach would also recognize that many poor individuals are in touchwith not just one justice system, but multiple, sometimessimultaneously.

No single article could fully cover this vast landscape ofprocedural scholarship. Yet, by focusing on a single procedural rule,this Article offers a vantage point from which others may view thefield. Ideally, others will now have a few more tools and several morequestions for studying procedure from the bottom up. (226)

Furthermore, this shift to a study of procedure from the bottom upis not strictly academic. It is a shift with practical implications. Theneed for scholarship on practices other than in forma pauperis pleadingsis particularly urgent as there are other obstacles that poor peoplemust confront to meaningfully access the federal courts. One couldexamine the Twiqbal revolution (or lack thereof). (227) There is someevidence that the insertion of a plausibility standard into Rule12(b)(6) disproportionately impacts poor litigants. (228) This approachmight also lend support to the new Mandatory Initial Discovery PilotProject that was implemented last year in the District of Arizona andthe Northern District of Illinois. (229) Such a project has potential tolevel the playing field for under-resourced litigants in the discoveryprocess. Indeed, the motivation for bottom-up procedure stems not justfrom a suspicion that judges and scholars often ignore problems specificto litigants with few resources, but also from the possibility that ashift in focus might yield different methods for building more efficientand equitable procedural systems.

CONCLUSION

This Article has analyzed and contextualized what is ultimately aneveryday problem in federal civil practice: the way federal courtsrequire litigants to plead their poverty. In capturing the range offederal in forma pauperis determinations, the Article explored how thisspecialized procedure could be made more coherent, easing the burdens onlitigants and judges alike. To do so, the Article placed federal informa pauperis determinations side-by-side with other means tests infederal law and with in forma pauperis determinations in thestates' court systems. Such a comparison suggests a promising newapproach for federal practice.

But in a larger sense, this Article is part of a broader inquiryinto how inequality in America has impacted civil procedure. The hope isthat this Article spurs some pressing questions about civil justice inthe United States. In what other ways do procedural systems adhere torudimentary practices that collide with the practical realities andinterests of poor people? Are there other ways in which the federalcourts have allowed civil procedure to channel poor litigants into adistinct procedural system? Does the United States now possess, ineffect, a subsystem of civil procedure for litigants who happen to bepoor? (230) If so, to paraphrase Albert Camus, can we maintain ourdevotion simultaneously to the federal courts and access to justice?(231)

The Article answers that last question in the affirmative. Itidentifies a change to a procedural rule that would honor our commitmentto the federal courts without sacrificing our fidelity to equal justice.We can serve both commitments of our procedural system--rationaladministration of the courts and access to justice for all litigants. Informa pauperis status is only one instance. There may be others.

APPENDIX A: IN FORMA PAUPERIS PRACTICE IN U.S. DISTRICT COURTS ANDSTATE COURTS

This Article analyzes all in forma pauperis forms used in the U.S.district courts. To conduct this analysis, I first visited each of theninety-four federal district courts' websites to determine if thecourt provided an online form. I collected every form that was availableand created a database of the forms. I noted whether the district courtreferred litigants to the Administrative Office of the U.S. Courts,which provides both a long form (AO 239) and a short form (AO 240) tofile in forma pauperis. With the help of a research assistant, Icontacted each of the ninety-four district courts' clerks'offices to determine whether they also accept the AO 239 and/or AO 240.We also asked the clerks' offices to confirm whether theinformation and form listed on the courts' websites were accurate.We then refined the list of district courts that use the AO 239, the AO240, and/or their own district-specific form. The results of thatresearch are reflected in Table 1. My research assistant and I thenindependently coded each of the district-specific forms and reconciledthe coding. We coded each of the forms across the following categories:

1) Sources of Income:

* Employment/Self-employment

* Real property

* Retirement (social security, pensions, annuities, insurance)

* Disability/Workers' comp/Unemployment payments

* Public assistance

* Interest/Dividends

* Stocks/Bonds/Notes

* Money owed to the movant

* Inheritance/Trust funds/Gifts

2) Expenses:

* Rent/Mortgage

* Utilities

* Food

* Medical

* Transportation

* Money owed by the movant

* Insurance (specific categories)

* Maintenance on home

3) Other:

* Schooling

* Consulted with/Paid an Attorney

* Children/Dependents

* Taxes

* Complaint filed raises claims in other lawsuits

* Filed case in same district

* Cash on hand

* Make and model of car

The results of the coding on sources of income, expenses, and otherquestions are included in Tables 2, 3, and 4 respectively. These tablesonly list districts that use their own forms.

In the midst of this research, I decided to survey in formapauperis rules in state courts as well. I had known that I wouldresearch state court systems for potential proposals to improve federalin forma pauperis practice. However, once I began this research, Ithought it better to systematically code the state court rules, albeiton more limited grounds. To conduct this analysis, my research assistantand I collected any state in forma pauperis statutes and the relevantstate court rules. We replicated our procedures for the federal courts.We coded each state's rules in four categories: (1) means tests;(2) adjunctive eligibility based on public benefits; (3) eligibilitybased on representation by a legal aid attorney; and (4) somediscretionary category such as "substantial hardship." Theresults of the coding of the state court systems are included in Table5.

TABLE 1.IN FORMA PAUPERIS FORMS IN THE U.S. DISTRICT COURTS (232)District FormMiddle District of Alabama Both AO 239/240Northern District of Alabama OwnSouthern District of Alabama OwnDistrict of Alaska OwnDistrict of Arizona AO 239 + affidavitEastern District of Arkansas AO 240Western District of Arkansas AO 240Central District of California OwnEastern District of California AO 240Northern District of California OwnSouthern District of California AO 239District of Colorado AO 239District of Connecticut OwnDistrict of Delaware AO 239District of Columbia AO 240Middle District of Florida Both AO 239/240 + affidavitNorthern District of Florida OwnSouthern District of Florida Both AO 239/240Middle District of Georgia AO 239Northern District of Georgia AO 239Southern District of Georgia AO 240District of Guam AO 240District of Hawaii AO 240District of Idaho OwnCentral District of Illinois Both AO 239/240Northern District of Illinois OwnSouthern District of Illinois OwnNorthern District of Indiana OwnSouthern District of Indiana Both AO 239/240 + ownNorthern District of Iowa AO 240Southern District of Iowa AO 240District of Kansas OwnEastern District of Kentucky Both AO 239/240Western District of Kentucky OwnEastern District of Louisiana AO 240 + affidavitMiddle District of Louisiana Both AO 239/240 + affidavitWestern District of Louisiana OwnDistrict of Maine AO 240District of Maryland AO 239 + affidavitDistrict of Massachusetts AO 240 + affidavitEastern District of Michigan AO 240Western District of Michigan AO 239District of Minnesota OwnNorthern District of Mississippi AO 240Southern District of Mississippi AO 239Eastern District of Missouri OwnWestern District of Missouri OwnDistrict of Montana AO 239District of Nebraska AO 240District of Nevada AO 240District of New Hampshire AO 239 + ownDistrict of New Jersey AO 239District of New Mexico AO 239Eastern District of New York AO 240Northern District of New York AO 240Southern District of New York OwnWestern District of New York OwnEastern District of North Carolina AO 239Middle District of North Carolina AO 239 + ownWestern District of North Carolina Both AO 239/240District of North Dakota OwnDistrict of the Northern Mariana Islands AO 239Northern District of Ohio OwnSouthern District of Ohio OwnEastern District of Oklahoma OwnNorthern District of Oklahoma OwnWestern District of Oklahoma OwnDistrict of Oregon OwnEastern District of Pennsylvania AO 239Middle District of Pennsylvania AO 240Western District of Pennsylvania Both AO 239/240District of Puerto Rico AO 240 + affidavitDistrict of Rhode Island OwnDistrict of South Carolina AO 240District of South Dakota Both AO 239/240Eastern District of Tennessee OwnMiddle District of Tennessee AO 239Western District of Tennessee AO 239Eastern District of Texas OwnNorthern District of Texas AO 239Southern District of Texas AO 240Western District of Texas AO 239/240 + ownDistrict of Utah AO 240District of Vermont AO 239/240 + affidavitDistrict of the Virgin Islands OwnEastern District of Virginia AO 239Western District of Virginia Both AO 239/240Eastern District of Washington OwnWestern District of Washington OwnNorthern District of West Virginia OwnSouthern District of West Virginia OwnEastern District of Wisconsin OwnWestern District of Wisconsin OwnDistrict of Wyoming AO 239TABLE 2.INCOME QUESTIONS ON IN FORMA PAUPERIS FORMS IN THE U.S. DISTRICT COURTS Employment Real Retirement Disability /Self-employment Property (social /Workers' security, comp pension, /Unemployment annuities, payments insurance)AO 240 * * * *AO 239 * * * *Northern * * * *District ofAlabamaSouthern * * *District ofAlabamaDistrict of * * * *AlaskaDistrict of * * * *Arizona(affidavit;alsorequires AO239)Central * * *Districtof CaliforniaNorthern * * *District ofCaliforniaDistrict of * * * *ConnecticutMiddle District * * * *of Florida(affidavit;alsorequires AONorthern * * * *District ofFloridaDistrict of * * * *IdahoNorthern * * * *District ofIllinoisSouthern * * * *District ofIllinoisNorthern * *District ofIndianaSouthern * * * *District ofIndianaDistrict of * * * *KansasWestern * * * *District ofKentuckyEastern * * *Districtof Louisiana(affidavit;alsorequires AO240)Middle * * * *Districtof Louisiana(affidavit;alsorequires AO239/240)Western * * * *District ofLouisianaDistrict of * * * *Maryland(affidavit;alsorequires AO239)District of * * * *Massachusetts(affidavit;alsorequires AO240)District of * * * *MinnesotaEastern * * * *Districtof MissouriWestern * * * *District ofMissouriDistrict * * * *of NewHampshireSouthern * * * *Districtof NewYorkWestern * * * *Districtof NewYorkMiddle * * * *Districtof NorthCarolinaDistrict of * * * *North DakotaNorthern * * *District ofOhioSouthern * * *District ofOhioEastern * *Districtof OklahomaNorthern * * * *District ofOklahomaWestern * * * *District ofOklahomaDistrict of * * * *Oregon * * * *District ofPuerto Rico(affidavit;alsorequires AO240)District of * * * *Rhode IslandEastern * * *Districtof TennesseeEastern * * *Districtof TexasWestern * * * *District ofTexasDistrict of * * *Vermont(affidavit;alsorequires AO239/240)District * * * *of theVirginIslandsEastern * * * *Districtof WashingtonWestern * * * *District ofWashingtonNorthern * * * *District ofWest Virginia * * * *SouthernDistrict ofWest VirginiaEastern * * * *Districtof WisconsinWestern * * * *District ofWisconsin Public Interest/ Stocks/ Money Inheritance assistance Dividends Bonds/ owed to /Trust Notes the funds/Gifts movantAO 240 * * *AO 239 * * * *Northern * * * *District ofAlabamaSouthern * * * *District ofAlabamaDistrict of * * * *AlaskaDistrict of * * * *Arizona(affidavit;alsorequires AO239)Central * * *Districtof CaliforniaNorthern * *District ofCaliforniaDistrict of * * * *ConnecticutMiddle District * * * *of Florida(affidavit;alsorequires AONorthern * * * *District ofFloridaDistrict of * * * *IdahoNorthern * * * *District ofIllinoisSouthern * * *District ofIllinoisNorthern *District ofIndianaSouthern * * * *District ofIndianaDistrict of * * * * *KansasWestern * * * * *District ofKentuckyEastern * *Districtof Louisiana(affidavit;alsorequires AO240)Middle * * *Districtof Louisiana(affidavit;alsorequires AO239/240)Western * * * *District ofLouisianaDistrict of * * * *Maryland(affidavit;alsorequires AO239)District of * * * *Massachusetts(affidavit;alsorequires AO240)District of * * * *MinnesotaEastern * * *Districtof MissouriWestern * * * *District ofMissouriDistrict * * *of NewHampshireSouthern * * * *Districtof NewYorkWestern * * * *Districtof NewYorkMiddle * * * *Districtof NorthCarolinaDistrict of * * *North DakotaNorthern * * * * *District ofOhioSouthern * *District ofOhioEastern * *Districtof OklahomaNorthern * * * *District ofOklahomaWestern * * *District ofOklahomaDistrict of * * *Oregon * * *District ofPuerto Rico(affidavit;alsorequires AO240)District of * * *Rhode IslandEastern * * * *Districtof TennesseeEastern * * *Districtof TexasWestern * * *District ofTexasDistrict of * * *Vermont(affidavit;alsorequires AO239/240)District * * *of theVirginIslandsEastern * * *Districtof WashingtonWestern * * * *District ofWashingtonNorthern * * * *District ofWest Virginia * * *SouthernDistrict ofWest VirginiaEastern * * * *Districtof WisconsinWestern * * * *District ofWisconsinTABLE 3.EXPENSE QUESTIONS ON IN FORMA PAUPERIS FORMS IN THE U.S. DISTRICT COURTS Rent/Mortgage Utilities Food MedicalAO 240 * *AO 239 * * * *NorthernDistrict ofAlabamaSouthern *District ofAlabamaDistrict ofAlaskaDistrict of * * * *Arizona(affidavit;also requiresAO 239)Central Districtof CaliforniaNorthern * * *District ofCaliforniaDistrict of * * * *ConnecticutMiddle District * * * *of Florida(affidavit;also requiresAO 239/240)Northern District * * * *of FloridaDistrict of Idaho * * * *Northern District * *of IllinoisSouthern Districtof IllinoisNorthern Districtof IndianaSouthern District * * * *of IndianaDistrict of Kansas * * * *Western District * * * *of KentuckyEastern District * *of Louisiana(affidavit;also requires AO240)Middle Districtof Louisiana(affidavit; alsorequires AO239/240)Western Districtof Louisiana (233)District of * * * *Maryland(affidavit; alsorequires AO 239)District of * * * *Massachusetts(affidavit; alsorequires AO 240)District of * * * *MinnesotaEastern District * *of MissouriWestern District * * *of MissouriDistrict ofNew HampshireSouthern District * *of New YorkWestern District * * *of New YorkMiddle Districtof NorthCarolinaDistrict ofNorth DakotaNorthern District * * * *of OhioSouthern District * *of OhioEastern District *of OklahomaNorthern * * * *District ofOklahomaWestern * *District ofOklahomaDistrict of * *OregonDistrict of * *Puerto Rico(affidavit;also requiresAO 240)District of * *Rhode IslandEastern District * * * *of TennesseeEastern District * * * *of TexasWestern District * * *of TexasDistrict of Vermont(affidavit; alsorequires AO239/240)District of * *the Virgin IslandsEastern District of * *WashingtonWestern District of * *WashingtonNorthern District * * * *of WestVirginiaSouthern Districtof WestVirginiaEastern District of * * * *WisconsinWestern District of * * * *Wisconsin Transportation Money Insurance Maintenance owed (categories) on home by the movantAO 240 * *AO 239 * * * (homeowner's, life, health, motor vehicle, other)Northern *District ofAlabamaSouthern *District ofAlabamaDistrict ofAlaskaDistrict of * * * *Arizona(affidavit;also requiresAO 239)Central Districtof CaliforniaNorthern *District ofCaliforniaDistrict of * *Connecticut (asks to list types)Middle District * * * *of Florida(affidavit;also requiresAO 239/240)Northern District * * *of Florida (car, medical, dental)District of Idaho * * *Northern District * *of IllinoisSouthern Districtof IllinoisNorthern Districtof IndianaSouthern District * * *of IndianaDistrict of * * * *Kansas (homeowner's or renter's, car, health, life)Western District * * *of Kentucky (homeowner's or renter's, car, health, life)Eastern District *of Louisiana(affidavit;also requires AO240)Middle District *of Louisiana(affidavit; alsorequires AO239/240)Western District *of Louisiana(233)District of * * *Maryland (homeowner's or(affidavit; renter's, life,also requires health, motorAO 239) vehicle, other)District of * * *Massachusetts (homeowner's or(affidavit; also renter's, life,requires AO 240) health, motor vehicle, other)District of * * *MinnesotaEastern District * *of MissouriWestern District * *of MissouriDistrict of *New HampshireSouthern District * *of New YorkWestern Districtof New YorkMiddle District *of NorthCarolinaDistrict of *North DakotaNorthern District * * *of OhioSouthern District *of OhioEastern District *of OklahomaNorthern * * *District ofOklahomaWestern * *District ofOklahomaDistrict of * *OregonDistrict of * *Puerto Rico(affidavit;also requiresAO 240)District of * *Rhode IslandEastern District * *of Tennessee (automobile, hospitalization, life)Eastern District * * *of TexasWestern District * * *of Texas (asks for what purpose)District ofVermont(affidavit; alsorequires AO239/240)District of * *the VirginIslandsEastern District * *of WashingtonWestern District * *of WashingtonNorthern District * * *of WestVirginiaSouthern Districtof WestVirginiaEastern Districtof WisconsinWestern District * *of WisconsinTABLE 4.OTHER QUESTIONS ON IN FORMA PAUPERIS FORMS IN THE U.S. DISTRICT COURTS Schooling Consulted Children/ Taxes Complaint with/ Dependents filed raises Paid an claims in other attorney lawsuitsAO 240 *AO 239 * * * *Northern * *Districtof AlabamaSouthernDistrictof AlabamaDistrict of *AlaskaDistrict of * * * *Arizona(affidavit;alsorequiresAO 239)Central * *DistrictofCaliforniaNorthern * *DistrictofCaliforniaDistrict * *ofConnecticutMiddle *District ofFlorida(affidavit;alsorequires AO239/240)Northern * *Districtof FloridaDistrict of * * * *IdahoNorthern *Districtof IllinoisSouthern *Districtof IllinoisNorthern *Districtof IndianaSouthern * *Districtof IndianaDistrict of * * *KansasWestern * * *DistrictofKentuckyEastern *DistrictofLouisiana(affidavit;alsorequiresAO 240)Middle *District ofLouisiana(affidavit;alsorequires AO239/240)Western *Districtof LouisianaDistrict of * * * *Maryland(affidavit;alsorequiresAO 239)District of * * * *Massachusetts(affidavit;alsorequiresAO 240)District of * * * *MinnesotaEastern *Districtof MissouriWestern *Districtof MissouriDistrict *of NewHampshireSouthern *Districtof New YorkWestern *Districtof New YorkMiddle *District ofNorthCarolinaDistrict of *NorthDakotaNorthern * * *Districtof OhioSouthern *Districtof OhioEastern * *District (must beof Oklahoma notarized)Northern * * * *Districtof OklahomaWestern *Districtof OklahomaDistrict of *OregonDistrict *of PuertoRico(affidavit;also requiresAO 240)Districtof Rhode * *IslandEastern * *Districtof TennesseeEastern * *Districtof TexasWestern *Districtof TexasDistrict of *Vermont(affidavit;alsorequires AO239/240)District *of theVirginIslandsEastern *Districtof WashingtonWestern *Districtof WashingtonNorthern * * *Districtof WestVirginiaSouthern *Districtof WestVirginiaEastern *Districtof WisconsinWestern *Districtof Wisconsin Filed case Cash on Make & in same hand model of district carAO 240AO 239 *NorthernDistrictof AlabamaSouthernDistrictof AlabamaDistrict of *AlaskaDistrict of *Arizona(affidavit;alsorequiresAO 239)Central *DistrictofCaliforniaNorthern * *DistrictofCaliforniaDistrict * * *ofConnecticutMiddle *District ofFlorida(affidavit;alsorequires AO239/240)Northern * *Districtof FloridaDistrict of *IdahoNorthern *Districtof IllinoisSouthern *Districtof IllinoisNorthern *Districtof IndianaSouthern *Districtof IndianaDistrict of *KansasWestern *DistrictofKentuckyEastern *DistrictofLouisiana(affidavit;alsorequiresAO 240)MiddleDistrict ofLouisiana(affidavit;alsorequires AO239/240)WesternDistrictof LouisianaDistrict of * *Maryland(affidavit;alsorequiresAO 239)District of * *Massachusetts(affidavit;alsorequiresAO 240)District of *MinnesotaEastern *Districtof MissouriWestern * *Districtof MissouriDistrictof NewHampshireSouthern *Districtof New YorkWestern *Districtof New YorkMiddle *District ofNorthCarolinaDistrict of *NorthDakotaNorthern * *Districtof OhioSouthern *Districtof OhioEastern *Districtof OklahomaNorthern *Districtof OklahomaWesternDistrictof OklahomaDistrict ofOregonDistrict *of PuertoRico(affidavit;also requiresAO 240)Districtof RhodeIslandEastern * *Districtof TennesseeEastern * *Districtof TexasWestern *Districtof TexasDistrict ofVermont(affidavit;alsorequires AO239/240)Districtof theVirginIslandsEasternDistrictof WashingtonWestern *Districtof WashingtonNorthern *Districtof WestVirginiaSouthernDistrictof WestVirginiaEastern *Districtof WisconsinWestern *Districtof WisconsinTABLE 5.IN FORMA PAUPERIS RULES IN THE STATE COURTSState Means-test Legal aid Adjunctive Discretionary (FPL%) waiver eligibility standard (public benefits)Alabama *Alaska * *Arizona * * * * (150%) (TANF, SNAP)Arkansas * *California * * * (125%) (Medicaid, SNAP, TANF, General Assistance, SSI, State Supplementary Payment, Tribal TANF, In-Home Supportive Services, or Cash Assistance Program for Immigrants)Colorado * * * (125%)Connecticut * * * (125%) ("Public assistance" including, but not limited to General Assistance, TANF, AABD, SNAP, or SSI)Delaware *District of *Columbia (SSI, SNAP, TANF, and Medicaid)Florida * * * (200%) (TANF, poverty-related veterans' benefits, or SSI)Georgia *Hawaii *Idaho * *Illinois * * * (125%) (SSI, AABD, TANF, SNAP, General Assistance, Transitional Assistance, or Family Assistance)Indiana * *Iowa * *Kansas *Kentucky * * (determined by Kentucky Supreme Court)Louisiana * * * (125%) ("Public assistance benefits" but does not specify)Maine * * (specifies "poverty -based" public benefits)Maryland * * *Massachusetts * * * (125%) (Medicaid, TANF, AABD, SSI, or Veterans' Benefits)Michigan * * * (125%) (SSI, TANF)Minnesota * * * * (125%) (TANF, SSI, Medicaid, MinnesotaCare, Medicare Part B or Part D, Low Income Home Energy Assistance Program, or SNAP)Mississippi *Missouri * * * (125%)Montana * * (133%)Nebraska * * * (125%) (TANF, AABD, povertyrelated veterans' benefits, SNAP, refugee benefits, Medicaid, SSI, or General Assistance)Nevada * *New * *HampshireNew Jersey * * *New Mexico * * * (TANF, General Assistance, SSI, SSDI, Veterans' disability benefits if sole source of income, SNAP, Medicaid, public-assisted housing, or Department of Health, Case Management Services)New York * *North * * *Carolina (TANF, SSI, SNAP)North * *Dakota (125%) (TANF, SSI, Medicaid)Ohio *Oklahoma *Oregon *Pennsylvania * *Rhode *IslandSouth * *CarolinaSouthDakota (234)Tennessee * (125%)Texas * * * ("Government entitlement program")Utah * * (150%)Vermont * * * (150%) (Benefit "must be significant to income")Virginia * * (125%)Washington * * * * (125%) (TANF, Housing and Essential Needs, SSI, Federal poverty-related veterans' benefits, SNAP)West * *VirginiaWisconsin * * * * (125%) ("Means-tested public assistance" such as TANF, General Assistance, Medicaid, SSI, SNAP, and veterans' benefits)Wyoming *

APPENDIX B: PROPOSED IN FORMA PAUPERIS FORM (235)

UNITED STATES DISTRICT COURT

for the __

__

(Plaintiff/Petitioner)

v.

__

(Defendant/ Respondent)

Case No. __

APPLICATION TO PROCEED IN DISTRICT COURT WITHOUT PREPAYING FEES ORCOSTS

__

I am a plaintiff, defendant, petitioner, or respondent in a caseinvolving (explain the nature of the case)

I declare that 1 am unable to pay the costs of these proceedingsand that I am entitled to the relief requested. In support of thisapplication, I answer the following questions under penalty of perjuryand acknowledge that a false statement may result in a dismissal of mycase.

I. Eligibility

1. Do you receive SNAP, Medicaid, or SSI (please specify)?

2. Are you represented by a lawyer from a legal aid organization(please specify)?

If you answered Yes to either of the above, please skip to thebottom of the page and sign.

If you answered No to both, please proceed.

II. Income and Assets

3. Are you currently employed? Yes / No

4. What is your monthly income from employment and any othersources? $__

5. What are your total assets excluding the home you live in? $ __

III. Expenses

6. How much are your monthly housing costs (rent/mortgagepayments)? $ __

7. How much do you pay in utilities each month? $ __

8. How much (if any) are your monthly medical expenses? $ __

9. How much do you spend on food each month? $ __

10. Do you have any other monthly expenses? $ __

11. Total Average Monthly Expenses (Add Answers #6 through #10): $__

12. Do you have anyone who lives with you and is dependent on youfor support? If so, list the initials and age: __

If there is anything else that you feel impacts your ability to paythe filing fee, please feel free to explain below or attach a writtenstatement.

DATE: __

SIGNATURE: __

(1.) Kayla Fontenot et al., Income and Poverty in the UnitedStates: 2017, U.S. CENSUS BUREAU 11 (Sept. 2018),https://www.census.gov/content/dam/Census/library/publications/2018/demo/p6o-263.pdf [https://perma.cc/EBE8-SSY8]. The poverty threshold in 2017was an annual income of $24,858 for a family of four including twochildren. See id. at 47. Poverty rates among African Americans andLatinos are about twice those of white Americans. See id. at 12.

(2.) Report on the Economic Well-Being of U.S. Households in 201/,BOARD GOVERNORS FED. RES. SYS. 21 (May 2018),https://www.federalreserve.gov/publications/files/2017-report-economic-well-being-us-households-201805.pdf [https://perma.cc/XT6W-GCA7].

(3.) Of the 267,769 cases filed in the federal trial courts infiscal year 2017, twenty-two percent of cases were brought under theSocial Security Act or civil rights statutes, including the Americanswith Disabilities Act, [section] 1983, and Title VII. See Table 4.4:U.S. District Courts -Civil Cases Filed, by Nature of Suit, ADMIN. OFF.U.S. Crs. 1-2,4 (2017),https://www.uscourts.gov/sites/default/files/data_tables/jff_4.4_0930.2017.pdf [https://perma.cc/7AT6-LYGB].

(4.) See infra Part I.

(5.) Throughout the Article, I use the terminology of"movant" or "litigant" rather than"plaintiff" or "defendant."

(6.) See infra Part I.

(7.) Id.

(8.) See infra Part II.

(9.) See, e.g., Medicaid, Children's Health Insurance Program,& Basic Health Program Eligibility Levels, MEDICAID.GOV,https://www.medicaid.gov/medicaid/program-information/medicaid-and-chip-eligibility-levels/index.html [https://perma.cc/XVU6-6JZK]; Food &Nutrition Serv., Am I Eligible for SNAP?, U.S. DEP'T AGRIC. tbl.1,https://www.fns.usda.gov/snap/eligibility [https://perma.cc/7AH4-QGUT].

(10.) See infra Part II.

(11.) See infra Part III.

(12.) See infra Part IV.

(13.) See infra Section IV.B.

(14.) See infra notes 16-24 and accompanying text. The firstquestion listed on the federal judiciary's website deals with informa pauperis practices:

[Question:] How do I file a civil case? Is there a charge?[Answer:] A civil action is commenced by the filing of a complaint.Parties instituting a civil action in a district court are required topay a filing fee pursuant to Title 28, U.S. Code, Section 1914. Thecurrent fee is $350. Complaints may be accompanied by an application toproceed in forma pauperis, meaning that the plaintiff is incapable ofpaying the filing fee. Proceedings in forma pauperis are governed byTitle 28, U.S. Code, Section 1915.

FAQs: Filing a Case, ADMIN. OFF. U.S. CTS.,https://www.uscourts.gov/facjs-filing-case [https://perma.cc/3D5Q-8XMS].

(15.) The only two relevant reports from the Federal JudicialCenter are from 1984 and 1994; they deal with whether district courtsallow prisoners and other IFP litigants to pay partial filing fees. SeeMARIE CORDISCO, FED. JUDICIAL CTR., PARTIAL PAYMENT OF FILING FEES IN INFORMA PAUPERIS CASES: CURRENT PRACTICES OF FEDERAL DISTRICT COURTS(1994) (detailing "the current practice in each United StatesDistrict Court regarding the imposition of partial filing fees");THOMAS E. WILLGING, FED. JUDICIAL CTR., PARTIAL PAYMENT OF FILING FEESIN PRISONER IN FORMA PAUPERIS CASES IN FEDERAL COURTS: A PRELIMINARYREPORT (1984) (focusing on the Northern District of Ohio'spractices). To be sure, such an effort is considerably easier now thatnearly all district courts make their local forms available on theirrespective court websites. Legal scholars have discussed in formapauperis practice, but these articles were published anywhere fromthirty to one hundred years ago, and none systematically analyzedfederal practice in the district courts. See, e.g., Robert S. Catz &Thad M. Guyer, Federal In Forma Pauperis Litigation: In Search ofjudicial Standards, 31 RUTGERS L. REV. 655, 656 (1978) (describingfederal practice as "both diffuse and inconsistent"); Ben. C.Duniway, The Poor Man in the Federal Courts, 18 STAN. L. REV. 1270(1966); Stephen M. Feldman, Indigents in the Federal Courts: The InForma Pauperis Statute--Equality and Frivolity, 54 FORDHAM L. REV. 413,414 (1985); John MacArthur Maguire, Poverty and Civil Litigation, 36HARV. L. REV. 361 (1923); Lee Silverstein, Waiver of Court Costs andAppointment of Counsel for Poor Persons in Civil Cases, 2 VAL. U. L.REV. 21 (1967); Comment on Recent Case, Procedure: Suits In FormaPauperis, 6 CALIF. L. REV. 226 (1918). More current writing on in formapauperis practice in the federal and the state courts can be found inbar journals. See, e.g., Regan Strickland Beatty, Access to theBankruptcy Courts: The In Forma Pauperis Provision, 85 OKLA. B.J. 822(2014); Christian J. Grostic, An Indigent Plaintiff in the FederalCourts, FED. LAW., Jan.-Feb. 2014, at 70; Christine E. Rollins,Statutory Assistance for Attorneys Providing Pro Bono Services, 60 J.Mo. B. 112 (2004). Justice Douglas discussed federal in forma pauperispractice in such a journal nearly sixty years ago. William O. Douglas,In Forma Pauperis Practice in the United States, N.H. B.J., Oct. 1959,at 5, 6 (explaining why "the pauper is entitled to the benefits ofall of the court's processes").

(16.) See generally Maguire, supra note 15, at 362-65 (discussingin forma pauperis status in the Anglo-American legal tradition).

(17.) See Brunt v. Wardle (1841) 133 Eng. Rep. 1254, 1257("[A]fter all, is the 11 H[en]. 7, c. 12 any thing more thanconfirmatory of the common law?"); see also 7 ENCYCLOPAEDIA OF THELAWS OF ENGLAND 192 (A. Wood Renton & Max A. Robertson eds., 2d ed.1907) (describing early recognition of the "common-law right"to proceed in forma pauperis).

(18.) See An Acte to Admytt Such P[er]sons as Are Poore to Sue InForma Paup[er]is 1495,11 Hen. 7 c. 12 [hereinafter Acte to Admytt].

(19.) This is not to say that there were no other costs to theindigent litigant. At common law, a pauper who lost his case could bewhipped. See An Acte that the Defendunt Shall Recov[er] Cost[s] Ageinstethe Pleyntif, if the P[lain]t[iff] Be Nonsuited, or if the V[er]dictePasse Ageinste Him 1532, 23 Hen. 8 c. 15 (noting that indigent litigants"shall suffer other punysshement as by the discrecion of theJustices or Judge afore whome suche suities shall depende, shalbethought reasonable").

(20.) Acte to Admytt, supra note 18. The statute of 1495 did notapply to civil defendants. Id.; see also COMMITTEE ON LEGAL AID ANDLEGAL ADVICE IN ENGLAND AND WALES, REPORT, [Cmd.] 6641 (1945)(discussing British in forma pauperis practice); Alex Elson, TheRushcliffe Report, 13 U. CHI. L. REV. 131, 142 (1946) ("[T]hesignificance of the Rushcliffe report is that the bar of England at thistime is willing to consider the need for legal assistance as afundamental problem requiring immediate national consideration.").

(21.) The Legal Aid and Advice Act 1949, 12 & 13 Geo. 6, c. 51(abolishing in forma pauperis status "in respect of proceedings inall courts in England and Wales except the Judicial Committee of thePrivy Council"); see also Richard I. Morgan, The Introduction ofCivil Legal Aid in England and Wales, 1914-1949, 5 TWENTIETH CENTURYBRIT. HIST. 38 (1994) (describing the creation of the legal aid system).

(22.) Act of July 20, 1892, ch. 209, [section] 1, 27 Stat. 252,252. Federal courts sitting in admiralty developed an analog to in formapauperis status before the 1892 statute. Typically made available toseamen suing for wages, this procedure allowed litigants to proceed upona juratory caution, which permitted sailors to avoid the court fee. See,e.g., The Arctic, 1 F. Cas. 1089 (E.D. Mich. 1871) (No. 509A); The GreatBritain, 10 F. Cas. 1050 (S.D.N.Y. 1843) (No. 5736); see also Maguire,supra note 15, at 381 n.102 (collecting admiralty cases that"without the aid of statute, bore the English stamp in the matterof poor persons' proceedings"); Comment on Recent Case, supranote 15, at 227-28 (discussing admiralty practice). Congress enacted astatutory right in such cases in 1948. See 28 U.S.C. [section] 1916(2018) (authorizing seamen to "institute and prosecute suits andappeals in their own names and for their own benefit for wages orsalvage or the enforcement of laws enacted for their health or safetywithout prepaying fees or costs or furnishing security therefor").

(23.) Act of July 20,1892, [section] 4, 27 Stat, at 252.

(24.) Id.

(25.) See H.R. REP. NO. 52-1079, at 1 (1892).

(26.) Id.

(27.) See id.; see also Comment on Recent Case, supra note 15.Earlier decisions from some state supreme courts held that the right toproceed in forma pauperis derived from statute. See, e.g., Hoey v.McCarthy, 24 N.E. 1038 (Ind. 1890); Campbell v. Chicago & Nw. Ry.,23 Wis. 490 (1868).

(28.) Neitzke v. Williams, 490 U.S. 319, 324-25 (1989) (discussinghow "[t]he brevity of [section] 1915(d) and the generality of itsterms have left the judiciary with the not inconsiderable tasks offashioning the procedures by which the statute operates and of givingcontent to [section] 1915(d)'s indefinite adjectives,"including "frivolous").

(29.) 236 U.S. 43, 45 (1915).

(30.) 490 U.S. at 324; see also Denton v. Hernandez, 504 U.S. 25,27 (1992); Zatko v. California, 502 U.S. 16, 16-17 (1991) (per curiam)(airing the concern that "in forma pauperis petitioners lack thefinancial disincentives--filing fees and attorney's fees--that helpto deter other litigants from filing frivolous petitions"). Othershave explored the extent to which lawyers have an obligation torepresent clients who cannot afford to pay them. See, e.g., David L.Shapiro, The Enigma of the Laivyer's Duty to Serve, 55 N.Y.U. L.REV. 735 (1980).

(31.) See Adkins v. E.I. du Pont de Nemours & Co., 335 U.S.331, 338-39 (1948) (identifying perjury prosecutions as "a sanctionimportant in protection of the public against a false or fraudulentinvocation of the statute's benefits" and discussing"other sanctions to protect against false affidavits"including authorizing courts to dismiss the case and "renderjudgment for costs"); Pothier v. Rodman, 261 U.S. 307 (1923).Admittedly, it is difficult to find perjury prosecutions for fraudulentin forma pauperis applications in published opinions of the federalcourts.

(32.) 28 U.S.C. [section] 1915(e)(2)(A) (2018); see, e.g., Thomasv. Gen. Motors Acceptance Corp., 288 F.3d 305, 306 (7th Cir. 2002)(interpreting [section] 1915(e)(2)(A) as mandatory, requiring that once"the allegation of poverty [is proven] false, the suit ha[s] to bedismissed; the judge ha[s] no choice").

(33.) See, e.g., Osoria v. AT&T Co., No. 11-cv-4296, 2013 WL4501450, at *3 (N.D. Ill. Aug. 21, 2013) (dismissing the case afterdiscovering that the plaintiff did not list assets on her IFPapplication, despite her argument that she misunderstood theapplication).

(34.) Act of June 25, 1910, ch. 435, [section] 1, 36 Stat. 866,866.

(35.) Id.

(36.) Act of Sept. 21, 1959, Pub. L. No. 86-320, 73 Stat. 590; seealso Rowland v. Cal. Men's Colony, 506 U.S. 194, 198 n.2 (1993)(discussing the legislative history that cited the JudicialConference's concern that the "distinction between citizensand aliens as contained in existing law may be unconstitutional"and also "in violation of various treaties entered into by theUnited States with foreign countries which guarantee[] to their citizensaccess of the courts of the United States."). In Rowland, theSupreme Court held that "only a natural person may qualify fortreatment in forma pauperis under [section] 1915." 506 U.S. at 196.

(37.) Act of June 27, 1922, ch. 246, 42 Stat. 666.

(38.) Act of Jan. 20, 1944, ch. 3, 58 Stat. 5.

(39.) Compare In re Perroton, 958 F.2d 889, 896 (9th Cir. 1992)(concluding that a bankruptcy court is not a "court of the UnitedStates" for the purposes of 28 U.S.C. [section] 1915(a)), with Inre McGinnis, 155 B.R. 294, 294 (Bankr. D.N.H. 1993) (collectingbankruptcy cases granting in forma pauperis status to Chapter 7debtors).

(40.) 409 U.S. 434 (1973).

(41.) Id. at 440-45 (distinguishing Boddie v. Connecticut, 401 U.S.371 (1971) on the grounds that a bankruptcy proceeding, unlike a divorceaction, does not involve a fundamental interest); see also, e.g., HenryRose, Denying the Poor Access to Court: United States v. Kras (1973), inTHE POVERTY LAW CANON 188, 191-96 (Marie A. Failinger & EzraRossereds., 2016) (detailing the disagreement within the Supreme Courtas to the application of Boddie); Judith Resnik, Fairness in Numbers: AComment on AT&T v. Concepcion, Wal-Mart v. Dukes, and Turner v.Rogers, 125 HARV. L. REV. 78, 86 (2011) (characterizing Boddie as theSupreme Court failing to guarantee access for "all poor civillitigants" and instead "identif [ying] a narrow band (largelyin family conflicts)... garnering constitutional entitlements togovernment subsidies to use courts").

(42.) Bankruptcy Abuse Prevention and Consumer Protection Act of2005, Pub. L. No. 109-8, 119 Stat. 23 (2005).

(43.) Id. [section] 418, 119 Stat, at 109.

(44.) Pub. L. No. 104-134, tit. VIII, 110 Stat. 1321, 1366 (1995);see Jones v. Bock, 549 U.S. 199, 203 (2007) ("Prisoner litigationcontinues to 'account for an outsized share of filings' infederal district courts." (quoting Woodford v. Ngo, 548 U.S. 81, 94n.4 (2006))). See generally Margo Schlanger, Inmate Litigation, 116HARV. L. REV. 1555 (2003) (laying out the scope and history of prisonlitigation in the federal system).

(45.) Shane v. Fauver, 213 F.3d 113, 117 (3d Cir. 2000) (emphasisomitted) (discussing the legislative history of the PLRA).

(46.) Bock, 549 U.S. at 204.

(47.) Porter v. Nussle, 534 U.S. 516, 524 (2002).

(48.) 42 U.S.C. [section] 1997e(a) (2018) (barring aprisoner's suit "until such administrative remedies as areavailable are exhausted").

(49.) See 28 U.S.C. [section] 1915(g) (2018); Ball v. Famiglio, 726F.3d 448, 452 (3d Cir. 2013) (illustrating how courts apply the"three strikes" rule); Abdul-Akbar v. McKelvie, 239 F.3d 307,314 (3d Cir. 2001) (en banc) ("It is important to note that[section] 1915(g) does not block a prisoner's access to the federalcourts. It only denies the prisoner the privilege of filing before hehas acquired the necessary filing fee.").

(50.) Under the PLRA, federal courts are required to dismiss anaction or appeal sua sponte if the action is "frivolous" or"malicious," "fails to state a claim on which relief maybe granted," or "seeks monetary relief against a defendant whois immune from such relief." 28 U.S.C. [section][section]i915(e)(2)(B)(i)-(iii).

(51.) Id. [section] 1915(a)(1).

(52.) See, e.g., Floyd v. USPS, 105 F.3d 274, 275 (6th Cir. 1997),overruled in part by Callihan v. Schneider, 178 F.3d 800 (6th Cir.1999). The PLRA's legislative history indicates that Congressamended the act to limit prisoners' access to pro se filings andthat Congress had not been focused on other aspects of litigation bythose unable to pay filing fees. Reading this history, the Sixth Circuitin Floyd applied "basic axioms of statutory interpretation, and...a little common sense" to hold that the word "prisoner"in [section] 1915(a)(1) was a scrivener's error. Id. at 275-77.Other circuits have construed "assets such prisoner possesses"to read as "assets such persons possess." See, e.g., Lister v.Dep't of Treasury, 408 F.3d 1309,1312 (10th Cir. 2005)("Section 1915(a) applies to all persons applying for IFP status,and not just to prisoners.").

(53.) See, e.g., DeBlasio v. Gilmore, 315 F.3d 396, 399 (4th Cir.2003) (holding that the PLRA fee requirements are not applicable to areleased prisoner and that his obligation to pay filing fees isdetermined by evaluating whether he qualifies under the general in formapauperis provision of 28 U.S.C. [section] 1915(a)(1)).

(54.) 28 U.S.C. [section] 1915(a)(1); see also Douglas, supra note15, at 5 (identifying the "expenses which can discourage poorpersons from turning to law courts to preserve their rights, or resultin deprivation of the full benefits which the law offers them").

(55.) This Article does not go so far as to recommend what in formapauperis status should entail beyond the initial fee waiver. Instead,this project's goal is to analyze how district courts requirelitigants to plead their poverty. In a subsequent project, however, Iplan to address the question of what the federal courts should provideindigent litigants. The poverty determination of the in forma pauperisapplication is the threshold question for such an inquiry, and it wouldbe ill-advised to recommend what benefits should flow from thisindigence status without first examining who precisely is consideredindigent.

(56.) 28 U.S.C. [section] 1914(a).

(57.) Id. [section] 1914(b).

(58.) See, e.g., D. VT. R. 3(c) (waiving for in forma pauperislitigants "the cost of filing and serving the complaint, but notlitigation expenses unless provided by statute"). One could imaginean arrangement in which district courts should be permitted to calibratewho receives IFP status according to the benefits that come with thestatus. In other words, if a district court assigned counsel to everyIFP litigant who files her case without an attorney, perhaps thatdistrict court would (or even should) be more parsimonious with grantingthe status.

(59.) See DeBlasio v. Gilmore, 315 F.3d 396, 398 (4th Cir. 2003);see also Zavala v. Deutsche Bank Trust Co. Ams., No. C 13-1040 LB, 2013U.S. Dist. LEXIS 77664, at *112 (N.D. Cal. May 29, 2013) ("If youcannot afford to pay the PACER access fees, you may file a motion withthe court asking to be excused from paying those fees. A court may, forgood cause, exempt persons from the electronic public access fees, inorder to avoid unreasonable burdens and to promote public access to suchinformation.").

(60.) Barcelo v. Brown, 655 F.2d 458,462 (1st Cir. 1981). But seeW.D. KY. R. 5.3(b) (authorizing the court to "order production ofadditional documents as necessary" at no cost to the IFP litigant).The Administrative Office's transcript order form, the AO435, lists"in forma pauperis" under the purpose of the order. AO 435:Transcript Order, ADMIN. OFF. U.S. CTS. (2018),https://www.uscourts.gov/sites/default/files/ao435.pdf[https://perma.cc/7AHD-FP4R]. See generally M.L.B. v. S.L.J., 519 U.S.102, 124 (1996) (holding that states cannot condition appeals of thetermination of parental rights on the affected parent's ability topay record-preparation fees).

(61.) Rivera v. City of Chicago, 469 F.3d 631, 634 (7th Cir. 2006).

(62.) Mother & Father v. Cassidy, 338 F.3d 704, 708 (7th Cir.2003).

(63.) Olson v. Coleman, 997 F.2d 726, 728 (10th Cir. 1993); Harrisv. Forsyth, 742 F.2d 1277, 1277-78 (11th Cir. 1984) (per curiam); Flintv. Haynes, 651 F.2d 970, 972-73 (4th Cir. 1981); see 28 U.S.C. [section]1915(f) (2018); Kenneth R. Levine, In Forma Pauperis Litigants: WitnessFees and Expenses in Civil Actions, 53 FORDHAM L. REV. 1461, 1463 n.6(1985).

(64.) See Moore v. McDonald, 30 F.3d 616, 621 (5th Cir. 1994)(holding that courts may impose costs at the conclusion of an in formapauperis plaintiff's lawsuit, as in other cases).

(65.) See, e.g., N.D. ILL. R. 3.3(g) ("Where an order isentered granting the IFP petition, that order shall, unless otherwiseordered by the court, stand as authority for the United States Marshalto serve summonses without prepayment of the required fees."); seealso FED. R. Crv. P. 4(c)(3) (similar provision). The 1892 statute read:"That the officers of court shall issue, serve all process, andperform all duties in such cases, and witnesses shall attend as in othercases, and the plaintiff shall have the same remedies as are provided bylaw in other cases." Act of July 20, 1892, ch. 209, [section] 3, 27Stat. 252, 252.

(66.) See 128 CONG. REC. 30929-30 (1982) (letter from the Office ofLegislative Affairs, U.S. Department of Justice, endorsing theamendments).

(67.) 28 U.S.C. [section] 1920; see, e.g., Powell v. CareyInt'l, Inc., 548 F. Supp. 2d 1351, 1355 (S.D. Fla. 2008).

(68.) Relatedly, if the IFP litigant proceeds pro se, some courtsprovide access to court-administered mediation. See, e.g., MediationPlan for Pro Se Civil Cases with Parties Granted In Forma PauperisStatus, U.S. DISTRICT CT. FOR W. DISTRICT TENN. 1 (Nov. 2018),https://www.tnwd.uscourts.gov/pdf/content/ProSeIFPCivilCaseMediationPlan.pdf [https://perma.cc/TRD3-9F67] (stating that mediation is availableto "to all civil cases with Pro Se IFP parties"). There issome disagreement as to whether federal or state courts can compelcounsel to serve an IFP litigant. See, e.g., Douglas, supra note 15, at5 (claiming that in a civil suit, a judge "has no power to requireanyone to serve as counsel"); William B. Fisch, CoerciveAppointments of Counsel in Civil Cases In Forma Pauperis: An Easy CaseMakes Hard Law, 50 Mo. L. REV. 527, 535-42 (1985) (discussing thehistory of compelling counsel to represent poor litigants); Laura B.Hardwicke, After Mallard v. United States: The Federal Courts'Inherent Power to Appoint Representation for Indigent Civil Litigants,22 LOY. U. L.J. 715 (1991); Shapiro, supra note 30 (arguing against theclaim that lawyers should have an affirmative obligation to servewithout compensation).

(69.) See, e.g., N.D. ILL. R. 83.35 (describing the procedure for"the assignment of a member of the trial bar to represent a partywho lacks the resources to retain counsel... in a civil action");D.N.J. R. app. H (laying out procedures to "govern the appointmentof attorneys to represent pro se parties in civil actions who lacksufficient resources to retain counsel pursuant to 28 U.S.C. [section]1915"); see also Mallard v. U.S. Disc Court, 490 U.S. 296, 302-03(1989) (identifying many American state statutes specifying that courtscould assign or appoint counsel).

(70.) FED. R. APP. P. 24(a); see Montana v. Comm'rs Court, 659F.2d 19, 23 (5th Cir. Unit A Sept. 1981).

(71.) See, e.g., Oatess v. Sobolevitch, 914 F.2d 428, 430 n.4 (3dCir. 1990).

(72.) Forty percent of Americans report being unable to cover anemergency cost equal to the $400 filing fee. See Report on the EconomicWeil-Being of U.S. Households in 2017, supra note 2, at 21.

(73.) See infra Tables 1-4. To see how these materials werecompiled and coded, please refer to the Appendix. The tables detail theresults of the coding. Throughout this Section, citations are made tothe results in the tables. Some districts are double counted in thesummary statistics because some courts use one of the AO forms but alsorequire a district-specific affidavit.

(74.) See infra Table 1.

(75.) See id.

(76.) See id.

(77.) See id.

(78.) See infra Tables 2-4.

(79.) See id.

(80.) See 12 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE ANDPROCEDURE [section] 3153, at 580 (3d ed. 2014) (quoting a formerDirector of the Federal Judicial Center who had referred to"rampant inconsistency between local and national rules," andnoting that "[p]olicing local divergences has proveddifficult" (footnotes omitted)); Daniel R. Coquillette et al., TheRole of Local Rules, A.B.A. J., Jan. 1989, at 62 (describing theJudicial Conference's 1989 Local Rules on Civil Practice Project);Carl Tobias, Civil Justice Reform Sunset, 1998 U. ILL. L. REV. 547, 555.

(81.) Motion to Proceed In Forma Pauperis, U.S. DISTRICT CT. FOR N.DISTRICT IND. 1 (Aug. 2016),http://wvw.innd.uscourts.gov/sites/innd/files/Approved%20IFP%20Motion-fillable.pdf [https://perma.cc/4JAS-ZZH7].

(82.) Id.; see also Motion to Proceed Without Prepayment of Fees,U.S. DISTRICT CT. FOR S. DISTRICT ALA. (Aug. 1, 2015),https://www.alsd.uscourts.gov/sites/alsd/files/forms/IFPMotion-localAO240.pdf [https://perma.cc/M5XL-7DFU] ("If you have indicated that youhave minimal or no assets or income, please explain how you provide foryour basic living needs such as food, clothing and shelter, (e.g. foodstamps, family assistance or charitable contributions.)").

(83.) See infra Table 2.

(84.) See infra Table 4.

(85.) See infra Table 2.

(86.) See infra Table 4.

(87.) See id.

(88.) See, e.g., U.S. Stock Ownership Down Among All hut Older,Higher-Income, GALLUP (May 24, 2017),https://news.gallup.corn/poll/211052/stock-ownership-dowr1-among-older-higher-income.aspx [https://perma.cc/HL4Q-H7AE].

(89.) In Forma Pauperis Application and Financial Affidavit, U.S.DISTRICT CT. FOR N. DISTRICT ILL. 2 (Aug. 23, 2018),http://www.ilnd.uscourts.gov/_assets/_documents/_forms/_online/Form.pdf[https://perma.cc/BL8F-B3TF].

(90.) Application to Proceed Without Prepaying Fees or Costs, U.S.DISTRICT CT. FOR S. DISTRICT N.Y. 1 (Aug. 5, 2015),http://www.nysd.uscourts.gov/file/forms/application-to-proceed-without-prepaying-fees-or-costs-ifp-application [https://perma.cc/G9F4-gEUD].

(91.) Financial Affidavit in Support of Motion for Leave to ProceedIn Forma Pauperis Pursuant to 28 U.S.C. [section]1915, U.S. DISTRICT CT.FOR DISTRICT CONN. 5 (Nov. 4, 2013),http://www.ctd.uscourts.gov/sites/default/files/forms/IFP-PROSE%20rev%206-17.pdf [https://perma.cc/V9GH-FFTP].

(92.) See infra Tables 3, 4.

(93.) Application to Waive the Filing Fee, U.S. DISTRICT CT. FORDISTRICT ALASKA 3 (Dec. 2013),http://www.akd.uscourts.gov/sites/akd/files/forms/PS11.pdf[https://perma.cc/LW7G-CNB5].

(94.) Motion to Proceed In Forma Pauperis, U.S. DISTRICT CT. FORDISTRICT P.R. 3 (1983),https://www.prd.uscourts.gov/sites/default/files/documents/17/AffidavitToAccompanyMotionTo ProceedInFormaPauperis.pdf[https://perma.cc/PJSI5H-LC5G].

(95.) See infra Table 4.

(96.) Four district courts refer to Aid to Families with DependentChildren, the federal cash assistance program that Temporary Assistanceto Needy Families (TANF) replaced over twenty years ago. PersonalResponsibility and Work Opportunity Reconciliation Act of 1996, Pub. L.No. 104-193, 110 Stat. 2105. See generally Andrew Hammond, Welfare andFederalism's Peril, 92 WASH. L. REV. 1721, 1729-35 (2017)(discussing TANF's replacement of Aid to Families with DependentChildren).

(97.) Motion for Leave to Proceed In Forma Pauperis &Supporting Affidavit, U.S. DISTRICT CT. FORE. DISTRICT OKLA. 3 (Sept.2013), http://www.oked.uscourts.gov/sites/oked/files/forms/Motion%20to%2oProceed%2oIFP_o.pdf [https://perma.cc/P48W-WAV3].

(98.) But see Maggie Gardner, Parochial Procedure, 69 STAN. L. REV.941, 960 (2017) (explaining that in this common law system "ourlegal culture is deeply committed to consistency across cases").

(99.) I use the phrase "intradistrict variance" todescribe the incidence of judges within the same district court makingdifferent determinations based on the same IFP form or forms.

(100.) See, e.g., Assistant Sec'y for Planning &Evaluation, U.S. Federal Poverty Guidelines Used to Determine FinancialEligibility for Certain Federal Programs, U.S. DEP'T HEALTH &HUM. SERVICES (Jan. 11,2019), https://aspe.hhs.gov/poverty-guidelines[https://perma.cc/4G53-PNV8].

(101.) One might expect judges to use the federal povertyguidelines issued by the U.S. Department of Health and Human Services.There might be other standards of need lurking in federal doctrine. See,e.g., San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 20 (1973)(defining poor people as those who "because of their impecunitywere completely unable to pay for some desired benefit, and as aconsequence, they sustained an absolute deprivation of a meaningfulopportunity to enjoy that benefit").

(102.) To my knowledge, the District of Nevada is the only districtcourt that, in its local rules, provides such guidance. See D. NEV. R.1-1 to -4.

(103.) See Todd C. Peppers et al., Inside Judicial Chambers: HowFederal District Court Judges Select and Use Their Law Clerks, 71 ALB.L. REV. 623, 635 (2008) (noting that "97% of the [federal districtjudge] respondents stated that their law clerks review the relevantbriefs and draft memoranda and orders regarding dispositivemotions"); Albert Yoon, Law Clerks and the Institutional Design ofthe Federal Judiciary, 98 MARQ. L. REV. 131, 142 (2014) (citing studiesshowing that "law clerks are playing an increasingly larger role inthe opinion-writing process").

(104.) Bulls v. Marsh, No. 89 C 3518, 1989 WL 51170, at *1 (N.D.Ill. May 5, 1989); see also Zaun v. Dobbin, 628 F.2d 990, 992 (7th Cir.1980) (holding that a federal court is not prohibited "fromrequiring particularized information with regard to the financial statusof a party seeking leave to proceed under [section] 1915").

(105.) United States v. Valdes, 300 F. Supp. 2d 82, 84 (D.D.C.2004) (denying an IFP petition due to the movant's resources andincome), rev'd on other grounds, 475 F.3d 1319 (D.C. Cir. 2007).

(106.) Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331,339 (1948); see Rowland v. Cal. Men's Colony, 506 U.S. 194, 203(1993) (explaining that the Court considers an in forma pauperis"affidavit... sufficient [when it] states that one cannot becauseof his poverty pay or give security for the costs... and still be ableto provide himself and dependents 'with the necessities oflife'" (second alternation in original) (quoting Adkins, 335U.S. at 339)); see also Lewis v. Ctr. Mkt., Civ. Nos. 09-306 et al.,2009 WL 5217343, at *3 (D.N.M. Oct. 29, 2009) ("[T]he federalstandards for IFP are not a bright-line percentage rule, but rather,rely on the discretion of the court.").

(107.) See, e.g., Brewster v. N. Am. Van Lines, Inc., 461 F.2d 649,651 (7th Cir. 1972) ("This privilege to proceed without postingsecurity for costs and fees is reserved to the many truly impoverishedlitigants who, within the District Court's sound discretion, wouldremain without legal remedy if such privilege were not afforded tothem.").

(108.) See Robert G. Bone, Who Decides? A Critical Look atProcedural Discretion, 28 CARDOZO L. REV. 1961, 1990 n.122 (2007)(explaining how "in the absence of strong feedback" a judgecan "lock into a routine set of practices even when those practicesare suboptimal or flawed").

(109.) The role of the judge in pro se proceedings is muchdiscussed in the courts and the scholarly literature. Discussion of prose litigants by courts can range from the solicitous to thecondescending. See, e.g., United States v. Dujanovic, 486 F.2d 182, 186(9th Cir. 1973) (describing pro se litigants as "rang[ing] from themisguided or naive... through the pressured one under the hardships ofthe accusation of crime and the sophisticated person enamored with hisown ability, to the crafty courtroom experienced one who ruthlesslyplays for the break," but noting that "[a]ll eventually playthe part of the proverbial fool"). Perhaps IFP motions channelthese litigants into a system in which the district court provides moreassistance than they might otherwise find. The pro se system, then, maysignificantly overlap with IFP practice. To be sure, a pro se appearancesometimes signals indigence for litigants who want to bring a case butneed the assistance of an attorney. However, it is beyond the scope ofthis Article to explore the connection between pro se and IFP practicein a comprehensive fashion.

(110.) See, e.g., Grostic, supra note 15 (recounting how a casebrought by an in forma pauperis litigant was transferred to a particularjudge per local administrative rule). For a classic criticism of thesepractices, see Owen M. Fiss, The Bureaucratization of the Judiciary, 92YALE L.J. 1442, 1456 (1983), which argues that "[t]he proliferationof staff and subjudges and the delegation of power to them weaken thejudge's individual sense of responsibility."

(111.) Based on background interviews with former clerks in bothcourts.

(112.) See, e.g., E. Donald Elliott, Twombly in Context: WhyFederal Rule of Civil Procedure 4(b) Is Unconstitutional, 64 FLA. L.REV. 895, 910 (2012) (stating that "it is unfair and humiliating tosubject poor people to pre-service review of their lawsuits but exemptthose wealthy enough to pay a filing fee"); Feldman, supra note 15,at 414 (asking whether "an in forma pauperis complaint [can] bedismissed even though an identical paid complaint cannot be similarlydismissed" but concluding that the difference in treatment isconstitutional because wealth is not a suspect classification). Thesequestions are ultimately beyond the scope of this Article.

(113.) See, e.g., Wade H. McCree, Jr., Bureaucratic Justice: AnEarly Warning, 129 U. PA. L. REV. 777, 781 (1981) ("Few woulddispute that the caseload in the federal courts has reached crisisproportions."); Robert F. Peckham, The Federal Judge as a CaseManager: The New Role in Guiding a Case from Filing to Disposition, 69CALIF. L. REV. 770, 770 & n.1 (1981) (explaining that federaldistrict court filings more than doubled between 1968 and 1980); JudithResnik, Managerial Judges and Court Delay: The Unproven Assumptions, 23JUDGE'S J. 8, 54 (1984) (arguing that "[j]udges' time isone of the most expensive resources in the courthouse"); CaseloadIncreases Stress Need for New Federal Judgeships, ADMIN. OFF. U.S. CTS.(Sept. 10, 2013), http://www.uscourts.gov/news/2013/09/10/caseload-increases-stress-need-new-federal-judgeships [https://perma.cc/R3JA-C66F].

(114.) AO 230: Application to Proceed in District Court WithoutPrepaying Fees or Costs (Long Form), JUD. CONF. U.S. 1 (2015),https://www.uscourts.gov/sites/default/files/ao239_1.pdf[https://perma.cc/MK7F-2ZP9].

(115.) See, e.g., Anandi Mani et al., Poverty Impedes CognitiveFunction, 341 SCIENCE 976, 976-77 (2013). In the literature on taxcompliance, many have argued that complexity is costly for bothtaxpayers and tax collectors, leading to arbitrary decisions andinequitable treatment of taxpayers. See, e.g., Edward J. McCaffery, TheHoly Grail of Tax Simplification, 1990 Wis. L. REV. 1267, 1291-94.

(116.) See Brooke D. Coleman, The Vanishing Plaintiff, 42 SETONHALL L. REV. 501, 502-03 (2012) (arguing that restrictive proceduralrules marginalize plaintiffs with fewer economic resources) ; JudithResnik, The Privatization of Process: Requiem for and Celebration of theFederal Rules of Civil Procedure at 75, 162 U. PA. L. REV. 1793, 1836(2014) (detailing how "[l]itigation forces dialogue upon theunwilling and temporarily alters configurations of authority").

(117.) See Myriam Gilles, Class Warfare: The Disappearance ofLow-Income Litigants from the Civil Docket, 65 EMORY L.J. 1531, 1538-39(2016) (discussing concerns that as "low-income claims disappearfrom the docket" judges could "lose important opportunities toengage with these categories of issues and litigants"). Others haveargued that these litigants have themselves been sources of change infederal practices. See, e.g., Theodore Eisenberg & Stephen C.Yeazell, The Ordinary and Extraordinary in Institutional Litigation, 93HARV. L. REV. 465, 510-16 (1980) (discussing how the revolution ofstructural reform litigation was not brought about by remedialinnovations of federal judges, but by new groups of litigants advancingnovel claims).

(118.) See In re McDonald, 489 U.S. 180, 184 (1989) (per curiam)(underscoring that "[p]aupers have been an important--andvalued--part of the Court's docket" (citing Gideon v.Wain-wright, 372 U.S. 335 (1963))); see also Amanda Frost, The Limits ofAdvocacy, 59 DUKE L.J. 447, 500 (2009) ("When the resources andabilities of opposing parties are lopsided, the adversarial system willfail to produce accurate results."). See generally ALEXANDRA D.LAHAV, IN PRAISE OF LITIGATION 29-30 (2017) (characterizing litigationas a democracy-promoting institution that helps to enforce the law,fosters transparency, offers a form of social equality by givinglitigants equal opportunity to be heard, and promotes participation inself-government).

(119.) State TANF programs, for instance, often require applicantsto jump through various bureaucratic hoops to receive assistance.

(120.) Denton v. Hernandez, 504 U.S. 25, 31 (1992) (alteration inoriginal) (quoting Adkins v. E.I. DuPont de Nemours & Co., 335 U.S.331, 342 (1948)).

(121.) Assistant Sec'y for Planning & Evaluation, supranote 100.

(122.) See, e.g., Rebecca M. Blank, Why the United States Needs anImproved Measure of Poverty, BROOKINGS (July 17, 2008),https://www.brookings.edu/testirnonies/why-the-unitecl-states-needs-an-improved-measure-of-poverty [https://perma.cc/G4YA-AUPE] ("It is nottoo strong a statement to say that, 45 years after they were developed,the official poverty thresholds are numbers without any valid conceptualbasis."); Rourke L. O'Brien & David S. Pedulla, Beyond thePoverty Line, STAN. Soc. INNOVATION REV. (2010),https://ssir.org/articles/entry/beyond_the_poverty__line[https://perma.cc/8ZFW-7R6Z] ("Most people who care about measuringpoverty--academics, policymakers, nonprofit leaders, and the like--agreethat the way the federal government currently determines who is poor andwho is not doesn't work."); Chad Stone et al., A Guide toStatistics on Historical Trends in Income Inequality, CTR. ON BUDGET& POL'Y PRIORITIES (Dec. 11, 2018),https://www.cbpp.org/research/poverty-and-inequality/a-guide-to-statistics-on-historical-trends-in-income-inequality[https://perma.cc/V8LZ-XSMT].

(123.) In 2009, the federal government created an interagencyworking group to develop a Supplemental Poverty Measure (SPM) that wouldaddress some of the shortcomings of the official federal povertyguidelines. That federal effort led the U.S. Census Bureau, incooperation with the Bureau of Labor Statistics, to create the SPM. See,e.g., Trudi Renwick & Liana Fox, The Supplemental Poverty Measure:201s, U.S. CENSUS BUREAU (Sept. 2016),https://www.census.gov/content/dam/Census/library/publications/2016/demo/p6o-258.pdf [https://perma.cc/NL6W-UXVP]. However, the SPM does notreplace the official poverty measure and is not used to determineeligibility for government programs. One day, the federal government mayreplace the poverty guidelines with the SPM, but, currently, there areno plans to implement the SPM. As a result, this Article uses the HHSpoverty guidelines as the most useful means test in federal law.

(124.) Many of these federal programs use different terminology torefer to the same features of the means test. See DAVID A. SUPER, PUBLICWELFARE LAW 189 (2016) ("Jargon varies significantly from programto program: what AFDC [TANF's predecessor] called disregards, [theSupplemental Nutrition Assistance Program (SNAP)] calls exclusions ordeductions. What AFDC called a family unit or grant group is called ahousehold in SNAP and a filing unit in Medicaid."). SNAP,Supplemental Security Income (SSI), and Social Security all have adifferent definition of the word "elderly." Id.

(125.) 45 C.F.R. [section] 1611.3(c)(1) (2018).

(126.) See supra text accompanying note 43.

(127.) See, e.g., Supplemental Nutrition Assistance Program (SNAP)Benefits Categorical Eligibility Desk-Aid, N.Y. OFF. TEMPORARY &DISABILITY ASSISTANCE (May 2016),https://otda.ny.gov/policy/directives/2oi6/ADM/16-ADM-o6-Attachment-1.pdf [https://perma.cc/94SJ-7BSR]. A household with an elderly person or aperson who is receiving certain types of disability payments only has tomeet the net income test. It is not uncommon for other public-assistanceprograms to have slightly less stringent means tests for the elderly orpeople with disabilities. See, e.g., 42 U.S.C. [section] 1396a(a)(1o)(C)(2018) (giving states the option to establish a program for individualswith significant health needs whose income is too high otherwise toqualify for Medicaid under other eligibility groups).

(128.) These deductions include: (1) a twenty percent deductionfrom earned income; (2) a standard deduction of $157 for household sizesof one to three persons and $168 for a household size of four (andhigher for some larger households); (3) a dependent care deduction whenneeded for work, training, or education; (4) medical expenses forelderly or disabled members that are more than $35 for the month if theyare not paid by insurance or someone else; (5) legally owed childsupport payments; and (6) in some states a set amount for shelter costsfor homeless households.

(129.) See Patient Protection and Affordable Care Act, Pub. L. No.111-148, [section] 2001, 124 Stat. 119, 271 (2010) (amending theMedicaid statute to create a new eligibility standard); see also GettingMAGI Right, GEO. CTR. FOR CHILD. & FAMILIES (Jan. 2015),http://ccf.georgetown.edu/wp-content/uploads/2015/o1/Getting-MAGI-Right_Jan-3o-2015.pdf [https://perma.cc/8X8R-8BKA].

(130.) See Lebron v. Sec'y, Fla. Dep't of Children &Families, 710 F.3d 1202 (nth Cir. 2013) (affirming the districtcourt's injunction of a Florida statute requiring drug testing as acondition of welfare eligibility); Marchwinski v. Howard, 113 F. Supp.2d 1134 (E.D. Mich. 2000) (enjoining a Michigan law authorizing the drugtesting of welfare recipients), aff'd by an equally divided court,60 F. App'x 601 (6th Cir. 2003) (en banc).

(131.) In this way, improving in forma pauperis practice avoids theinside/outside fallacy that sometimes afflicts public law scholarship:scholars will criticize the institutional actors in a legal system andthen identify a proposal that those same, allegedly deficient actorsshould implement. See Eric A. Posner & Adrian Vermeule, Inside orOutside the System?, 80 U. CHI. L. REV. 1743, 1745 (2013). Here, federaljudges can borrow practices from their counterparts in the statejudiciaries.

(132.) See, e.g., Thomas O. Main, Procedural Uniformity and theExaggerated Role of Rules: A Survey of Intra-State Uniformity in ThreeStates That Have Not Adopted the Federal Rules of Civil Procedure, 46VILL. L. REV. 311, 319 (2001) (finding that roughly half of states haveadopted the Federal Rules as their own civil procedure system); cf.Glenn S. Koppel, Toward a New Federalism in State Civil Justice:Developing a Uniform Code of State Civil Procedure Through aCollaborative Rule-Making Process, 58 VAND. L. REV. 1167, 1172-75 (2005)(noting that "although the federal rules once exerted a powerfulinfluence on state procedure, during the last two decades statedeference to the federal rules has waned" and advocating for aninterstate collaborative system to replace the failure of the top-downFederal Rules model). But see Abbe R. Gluck, The States as Laboratoriesof Statutory Interpretation: Methodological Consensus and the NewModified Textualism, 119 YALE L.J. 1750, 1753-59 (2010) (arguing thatscholars have paid insufficient attention to state courts as innovativesites of statutory interpretation); Ronald Wright & Marc Miller, TheScreening/Bargaining Tradeoff, 55 STAN. L. REV. 29, 117 (2002)(criticizing "the legal academy's... ignorance of the wondrousvariation in state and local systems").

(133.) See Hannah Lieberman, Uncivil Procedure: How State CourtProceedings Perpetuate Inequality, 35 YALE L. & POL'Y REV. 257,260 (2016) ("Defendants in these millions of [state] civil casestend to be persons of low or modest income."); Elizabeth L.MacDowell, Reimagining Access to Justice in the Poor People'sCourts, 22 GEO. J. ON POVERTY L. & POL'Y 473, 475 (2015)(discussing the need for a social justice approach to "state civilcourts serving large numbers of low-income, unrepresentedlitigants"); Jessica K. Steinberg, Demand Side Reform in the PoorPeople's Court, 47 CONN. L. REV. 741, 743 (2015) (detailing how"pro se litigation--primarily involving the indigent--now dominatesthe landscape of state courts"). The rise of poor litigants instate courts offers a functional explanation for why states haveexperimented with "civil Gideon." See Laura K. Abel & MaxRettig, State Statutes Providing for a Right to Counsel in Civil Cases,40 CLEARINGHOUSE REV. 245, 245 (2006) (documenting state statutes orcourt rules that "provide[] for a right to counsel and the extentto which state right-to-counsel statutes attempt to ensure that counselis competent"); Clare Pastore, A Civil Right to Counsel: Closer toReality?, 42 LOY. L.A. L. REV. 1065, 1074, 1081 (2009) (noting that"a small number of judges" have been calling for it and thatthe term connotes an "implicit adoption of the public defendermodel as an aspirational goal"). But see Benjamin H. Barton,Against Civil Gideon (and for Pro Se Court Reform), 62 FLA. L. REV.1227, 1227-29, 1231-34 (2010) (expressing skepticism toward civil Gideonefforts); Deborah L. Rhode, Access to Justice: A Roadmap for Reform, 41FORDHAM URB. L.J. 1227, 1231 (2014) (same).

(134.) See, e.g., An Act Providing a Mean to Help and Speed PoorPersons in Their Suits, 1834 Ky. Acts 327; An Act to Assist Poor Personsin the Prosecution of Their Suits, 1800 N.J. Laws 339; An Act Providinga Mean to Help and Speed Poor Persons in Their Suits, ch. 65,1823 Va.Acts 356; see also THOMAS K. URDAHL, THE FEE SYSTEM IN THE UNITED STATES(Madison, Wis., Democrat Printing Co. 1898) (describing the history offee systems among government officers including judges); LeeSilverstein, Waiver of Court Costs and Appointment of Counsel for PoorPersons in Civil Cases, 2 VAL. U. L. REV. 21, 30 (1967) (collectingstates' in forma pauperis rules). Edwina Clarke and Judith Resnikpointed me to these sources.

(135.) See IOWA CODE [section] 610.1 (2018) ("Such affidavitshall also include a brief financial statement showing the person'sinability to pay costs, fees, or give security."); LA. CODE CIV.PROC. ANN. art. 5182 (West 2018) (requiring that IFP status be"restricted to litigants who are clearly entitled to it").

(136.) See CAL. GOV'T CODE [section] 68632(c) (West 2009)(allowing state courts to waive fees for "[a]n applicant who, asindividually determined by the court, cannot pay court fees withoutusing moneys that normally would pay for the common necessaries of lifefor the applicant and the applicant's family"); KY. REV. STAT.ANN. [section] 453.190 (LexisNexis 2017) (defining a "poorperson" as someone who "is unable to pay the costs and fees ofthe proceeding in which he is involved without depriving himself or hisdependents of the necessities of life, including food, shelter, orclothing").

(137.) See, e.g., DEL. CODE ANN. tit. 10, [section] 8802(b) (2018)(instructing litigants to "provide complete information as to theaffiant's identity, the nature, source and amount of all of theaffiant's income, the affiant's spouse's income, all realand personal property owned either individually or jointly, all cash orbank accounts held either individually or jointly, any dependents of theaffiant and all debts and monthly expenses").

(138.) See infra Table 5. Guam and West Virginia are the twojurisdictions that set a means test not tied to the federal povertyguidelines.

(139.) Id.; see, e.g., CAL. GOV'T CODE [section] 68632(b)(allowing state courts to waive fees for "[a]n applicant whosemonthly income is 125 percent or less of the current poverty guidelinesupdated periodically in the Federal Register by the United StatesDepartment of Health and Human Services").

(140.) See FLA. STAT. ANN. [section] 57.082(2) (a) (West 2006)(200%); MONT. CODE ANN. [section] 47-1-111(3) (a) (2017) (133%); UTAHCODE ANN. [section] 77-32-202(3)(a)(ii) (West 2017) (150%); ARIZ. CODEJUD. ADMIN. [section] 5-206 (2015) (150%); N.J. Cr. R. 1:13-2 & 2:7(150%); N.M. CT. R. 10-408 (150%); TEX. R. Crv. P. 145 (200%);Application to Waive Filing Fees and Service Costs, VT. JUDICIARY 2(Nov. 2014), https://www.vermontjudiciary.org/sites/default/files/documents/Form-228.pdf [https://perma.cc/V4NF-YGVX] (150%).

(141.) See, e.g., CAL. GOV'T CODE [section] 68632(a) (waivingfees for litigants who are receiving any of seven public benefitsincluding SSI, SNAP, TANF, and Medicaid); see infra Table 5; cf. MASS.GEN. LAWS ANN. ch. 261, [section] 27A (West 2004) (omitting SNAP); MICH.COMP. LAWS [section] 40o.1oa(d) (2017) (including TANF and SSI in thedefinition of "public assistance," but not SNAP or childcareassistance).

(142.) See, e.g., 735 ILL. COMP. STAT. ANN. 5/5-105(3) (2) (i)(West 2003) (allowing the receipt of Aid to the Aged, Blind, andDisabled (AABD) or General Assistance to meet the indigence standard).

(143.) See MASS. GEN. LAWS ANN. ch. 261, [section] 27A(a)(identifying poverty-related veterans' benefits); WIS. STAT. ANN.[section] 814.29(1)(d) (West 2007); NEB. R. 3-13; N.M. CT. R. 10-408(waiving fees in juvenile cases); WASH. CT. GEN. R. 34.

(144.) 567 U.S. 519 (2012) (rendering the Medicaid expansionoptional because the federal government could not threaten states withthe loss of their existing Medicaid funding if they declined to comply).

(145.) See, e.g., MASS. GEN. LAWS ANN. ch. 261, [section] 27A. Butsee TEX. R. Crv. P. 145 (not specifying which "governmententitlement programs" create adjunctive eligibility).

(146.) See infra Table 5.

(147.) MINN. STAT. [section] 563.01 (2016).

(148.) S.C. R. CIV. P. 3(b)(2).

(149.) See, e.g., CAL. GOV'T CODE [section][section] 68631,68632(c), 68636(d), 68637(e) (West 2009).

(150.) Elizabeth Wolkomir & Lexin Cai, The SupplementalNutrition Assistance Program Includes Earnings Incentives, CTR. ONBUDGET & POL'Y PRIORITIES (2018),https://www.cbpp.org/sites/default/files/atoms/files/7-25-17fa.pdf[https://perma.cc/P84Z-GE8G].

(151.) See, e.g., E.D. TENN. R. 4.2 ("Depending on the amountof funds available to the petitioner, the Court may require thepetitioner to pay a portion of the filing fee.").

(152.) This fourth possibility is often phrased as"substantial hardship." See, e.g., 735 ILL. COMP. STAT.5/5-105(a)(2)(iii) (West 2003).

(153.) Jonathan L. Rothbaum, Redesigned Questions May Contribute toIncrease, U.S. CENSUS BUREAU (Sept. 12, 2018),https://www.census.gov/library/stories/2018/09/highest-median-household-income-on-record.html [https://perma.cc/9L94-KJRX] ("Income datareleased by the U.S. Census Bureau today show that 2017 median householdincome was the highest on record at $61,372.").

(154.) Others have thoughtfully explored what such a commitment toequal justice for poor people means absent a given institutionalframework. See, e.g., Richard M. Re, "Equal Right to thePoor," 84 U. CHI. L. REV. 1149, 1216 (2017) (exploring the meaningof the federal judicial oath of office as "an authoritativedirective that federal courts attend to economic equality"); JudithResnik, Money Matters: Judicial Market Interventions Creating Subsidiesand Awarding Fees and Costs in Individual and Aggregate Litigation, 148U. PA. L. REV. 2119, 2127-30 (2000) (discussing paying for legalrepresentation in the context of mass torts); see also Omri Ben-Shahar,The Paradox of Access Justice, and Its Application to MandatoryArbitration, 83 U. CHI. L. REV. 1755, 1759 (2016) ("It is socommonly assumed that access justice benefits the weak that the premisehas escaped any significant scrutiny."). Others have considered howbest to pay for civil adjudication. See, e.g., Issachar Rosen-Zvi, JustFee Shifting, 37 FLA. ST. U. L. REV. 717, 739 (2010) (proposing aone-way progressive fee-shifting rule); see also Deborah R. Hensler,Financing Civil Litigation: The US Perspective, in NEW TRENDS INFINANCING CIVIL LITIGATION IN EUROPE: A LEGAL, EMPIRICAL, AND ECONOMICANALYSIS 149 (Mark Tuil & Louis Visscher eds., 2010) (describing howcivil litigation is financed in the United States and consideringwhether the current structure leads to excessive litigation). Indeed,some may argue that no one should have to pay to access the federalcourts. Instead of embracing such a solution, this Article promotes anaccurate, streamlined process that serves the commitments of Congressand the federal judiciary better than the status quo.

(155.) See 2019 Basic Field Grant Terms and Conditions, LEGALSERVICES CORP., https://www.lsc.gov/grants-grantee-resources/grantee-guidance/grant-assurances/2019-basic-field-grant-terms-and-conditions[https://perma.cc/ZLC9-D8A6].

(156.) See D.N.H. R. 4.2(b) ("An applicant shall be entitledto proceed in forma pauperis if the applicant's financialaffidavit... demonstrates that the applicant is unable to pay or prepaythe fees and pay the costs of the action and the court determines thatthe applicant has not deliberately depleted his or her assets in orderto become eligible for in forma pauperis status.").

(157.) See supra Section I.C.

(158.) But see Gillian K. Hadfield, Higher Demand, Lower Supply--AComparative Assessment of the Legal Resource Landscape for OrdinaryAmericans, 37 FORDHAM URB. L.J. 129,140 (detailing that 6,581 LSC-fundedattorneys represent one-half of one percent of all lawyers in the UnitedStates). To be sure, there will be some overlap among these threecategories of automatic qualification. An individual who is beingrepresented by an LSC-funded attorney may receive (or at least may beeligible to receive) Medicaid. However, due to the sheer number ofAmericans who live below the federal poverty level, it is unlikely thatthis overlap will reduce the number of people who are eligible for IFPstatus.

(159.) Compare Amanda Frost, Overvaluing Uniformity, 94 VA. L. REV.1567 (2008), with Gil Seinfeld, The Federal Courts as a Franchise:Rethinking the Justifications for Federal Question Jurisdiction, 97CALIF. L. REV. 95 (2009). Many have located this generalized discretionin the Federal Rules themselves. See, e.g., Bone, supra note 108, at1967 ("Case-specific discretion has been at the heart of theFederal Rules ever since they were first adopted in 1938."); EdwardH. Cooper, Simplified Rules of Federal Procedure?, 100 MICH. L. REV.1794, 1795 (2002) (emphasizing that "vast discretion remains atvirtually every turn" in the Federal Rules); Richard L. Marcus,Slouching Toward Discretion, 78 NOTRE DAME L. REV. 1561, 1565-66 (2003)(distinguishing primary and secondary discretion); Mark Moller,Procedure's Ambiguity, 86 IND. L.J. 645, 650 (2011) (describing howthe Federal Rules "embracfe] vague, discretion-conferringtests"); Elizabeth G. Porter, Pragmatism Rules, 101 CORNELL L. REV.123, 128-29 (2015) ("Rules deliberately use abstract,discretionary--almost poetic--language in order to allow district courtsto achieve the flexible goal of procedural due process."). But seeChristopher M. Fairman, Heightened Pleading, 81 TEX. L. REV. 551, 557(describing the "global vision of the drafters" of the FederalRules to be that "litigants should have their day in court").

(160.) The federal poverty guidelines are calculated for the lowerforty-eight states, Alaska, and Hawaii, respectively.

(161.) See, e.g., David A. Strauss, Common Law ConstitutionalInterpretation, 63 U. CHI. L. REV. 877, 892 (1996) (noting thattraditions "reflect a kind of rough empiricism:... they have beentested over time, in a variety of circ*mstances, and have been found tobe at least good enough"); Cass R. Sunstein, Burkean Minimalism,105 MICH. L. REV. 353, 359 (2006) ("The argument for Burkeanism isthat respect for traditions is likely to produce better results, allthings considered, than reliance on theories of one or another kind,especially when those theories are deployed by such fallible humanbeings as judges."). But cf. Oliver Wendell Holmes, The Path of theLaw, 10 HARV. L. REV. 457, 469 (1897) ("History must be a part ofthe study, because without it we cannot know the precise scope of ruleswhich it is our business to know. It is a part of the rational study,because it is the first step toward an enlightened scepticism, that is,toward a deliberate reconsideration of the worth of those rules.... Itis revolting to have no better reason for a rule of law than that so itwas laid down in the time of Henry IV."); David A. Strauss,Tradition, Precedent and Justice Scalia, 12 CARDOZO L. REV. 1699, 1706(1991) ("Some precedents may be said to be parr of a tradition. Butnot all are. Some are simply the decisions of a group of judges rendereda few years ago.").

(162.) The Sentencing Guidelines serve as a prominent example. SeeUnited States v. Booker, 543 U.S. 220 (2005).

(163.) Only about one percent of SNAP benefits are trafficked,compared with four percent before the system became electronic. U.S.GOV'T ACCOUNTABILITY OFFICE, GAO-10-956T, SUPPLEMENTAL NUTRITIONASSISTANCE PROGRAM: PAYMENT ERRORS AND TRAFFICKING HAVE DECLINED, BUTCHALLENGES REMAIN 11 (2010). When the Food and Nutrition Service beganissuing SNAP through electronic benefit transfer (EBT) cards, theAnti-Fraud Locating Using EBT Retailer Transactions (ALERT) system wascreated to monitor electronic transaction activity and identifysuspicious stores for analysis and investigation. See SNAP: ExaminingEfforts to Combat Fraud and Improve Program Integrity, Joint HearingBefore the Subcomm. on Gov't Operations & the Subcomm. on theInterior of the H. Comm. on Oversight & Gov't Reform, 114thCong. 14 (2016) (statement of Kevin W. Concannon, Under Secretary, Food,Nutrition and Consumer Services). In fiscal year 2015, over 1,900 storeswere permanently disqualified for trafficking and another 800 storeswere sanctioned for other violations. Id. at 83 (statement of StacyDean, Vice President for Food Assistance Policy, Center on Budget andPolicy Priorities). Trafficking has fallen dramatically over the past 15years. See id.

(164.) See Peter Budetti, How CMS Is Fighting Fraud: Major ProgramIntegrity Initiatives, CENTERS FOR MEDICARE & MEDICAID SERVICES(June 11, 2012), https://www.cms.gov/Outreach-and-Education/Look-Up-Topics/Fraud-and-Abuse/Fraud-page.html [https://perma.cc/EE47-S7F2]. TheImproper Payments Information Act of 2002 led to the creation of anational audit, the Medicaid Payment Error Rate Measurement, whichestimates the percentage of payments that either should not have beenmade or were made for the wrong amount. See Payment Error RateMeasurement Manual, CENTERS FOR MEDICARE & MEDICAID SERVICES (Jan.2018), https://www.cms.gov/Research-Statistics-Data-and-Systems/Monitoring-Programs/Medicaid-and-CHIP-Compliance/PERM/DownIoads/FY17PERMManual.pdf [https://perma.cc/WG8H-FLRQ]; cf. Medicaid Integrity Program, AnnualSummary Report of Comprehensive Program Integrity Reviews, CENTERS FORMEDICARE & MEDICAID SERVICES (June 2012),https://www.cms.gov/Medicare-Medicaid-Coordination/Fraud-Prevention/FraudA-buseforProfs/Downloads/2012pisummary.pdf [https://perma.cc/K6XR-AE53](providing a summary of best practices for preserving the integrity ofstate Medicaid programs). There is concern that the Earned Income TaxCredit (EITC) is rife with improper payments, see, e.g., RobertGreenstein et al., Reducing Overpayments in the Earned Income TaxCredit, CTR. ON BUDGET & POL'Y PRIORITIES (Feb. 20, 2018),https://www.cbpp.org/research/federal-tax/reducing-overpayments-in-the-earned-income-tax-credit [https://perma.cc/5T3H-P85C], but no state hasused EITC receipt as a way to prove one's indigence. The federaljudiciary should similarly ignore the EITC.

(165.) See Hammond, supra note 96, at 1765-69 (discussing recentcongressional proposals to restructure Medicaid and SNAP).

(166.) See, e.g., NEIL GILBERT, TRANSFORMATION OF THE WELFARESTATE: THE SILENT SURRENDER OF PUBLIC RESPONSIBILITY 142 (2002)('"The means test stigmatizes beneficiaries' is a mantrathat has gained almost factual status from repetition."); Andrew G.Biggs, Means Testing and Its Limits, NAT'L AFF., Fall 2011, at 97.

(167.) See Hammond, supra note 96, at 1765-69.

(168.) See, e.g., Phil Galewitz, Nearly Half of U.S. Births AreCovered by Medicaid, Study Finds, KAISER HEALTH NEWS (Sept. 3, 2013),https://khn.org/news/nearly-half-of-u-s-births-are-covered-by-medicaid-study-finds/ [https://perma.cc/5DL4-75PM].

(169.) See, e.g., Alan Bjerga, Food Stamps Still Feed One in SevenAmericans Despite Recovery, BLOOMBERG NEWS (Feb. 3, 2016),https://www.bloomberg.com/news/articles/2016-02-03/food-stamps-still-feed-one-in-seven-americans-despite-recovery [https://perma.cc/L4DU-BDNJ].

(170.) See Douglas, supra note 15, at 8 ("Much of the value ofthe in forma pauperis practice would be lost if too stringent standardsof poverty were required to qualify as a pauper.").

(171.) In fact, one could easily reverse engineer this proposal forthe federal system and apply it to any state court system. Statelegislatures or state courts could adopt this model in forma pauperispractice through statute or judicial rule, respectively.

(172.) The Rules Enabling Act delegates to the Supreme Court thepower "to prescribe general rules of practice and procedure"for cases in federal court, subject to congressional acquiescence. 28U.S.C. [section] 2072(a) (2018); see, e.g., Gene R. Nichol Jr., JudicialAbdication and Equal Access to the Civil Justice, 60 CASE. W. RES. L.REV. 325, 330 (2010) (contending that judges play "a singular anddefining role in creating, maintaining, and assuring open, effective,and meaningful access to the system of justice they administer");Stephen N. Subrin & Thomas O. Main, Braking the Rules: Why StateCourts Should Not Replicate Amendments to the Federal Rules of CivilProcedure, 67 CASEW. RES. L. REV. 501, 517 (2016) ("Since themid-1970s, the Federal Rules of Civil Procedure have been amended andfederal procedure altered by three different casts of characters: theAdvisory Committee on Civil Rules, the majority of the Supreme Court ofthe United States, and the judges on the federal districtcourts.").

(173.) See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002)("A requirement of greater specificity for particular claims is aresult that 'must be obtained by the process of amending theFederal Rules, and not by judicial interpretation.'" (quotingLeatherman v. Tarrant Cry. Narcotics Intelligence & CoordinationUnit, 507 U.S. 163, 168-69 (1993))); Crawford-El v. Britton, 523 U.S.574, 595 (1998) ("To the extent that the court was concerned withthis procedural issue, our cases demonstrate that questions regardingpleading, discovery, and summary judgment are most frequently and mosteffectively resolved either by the rulemaking process or the legislativeprocess."); see also Richard D. Freer, The Continuing Gloom AboutFederal Judicial Rulemaking, 107 Nw. U. L. REV. 447, 449 (2013)(describing the Court's tendency to "engage[] in amendment bycase law instead of through the [rulemaking] process"); A. BenjaminSpencer, Plausibility Pleading, 49 B.C. L. REV. 431, 453-54 (2008)(criticizing the Court for circumventing the formal rule-amendmentprocess through Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)).But see Porter, supra note 159, at 142 (noting a lack of scholarlyconsensus on "the Court's role in the rulemaking process, oron the related question of the relationship between the Court'srulemaking role (however that might be defined) and its Article IIIpowers of adjudication").

(174.) See Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins.Co., 559 U.S. 393,400 (2015) ("Congress ... has ultimate authorityover the Federal Rules of Civil Procedure."). But see David Marcus,Institutions and an Interpretive Methodology for the Federal Rules ofCivil Procedure, 2011 UTAH L. REV. 927, 961 ("Although they haveformal roles, the Judicial Conference, Supreme Court, and Congress actlargely as rubber stamps in the rulemaking process.").

(175.) See supra notes 44-53 and accompanying text (discussing thePLRA's mangling of in forma pauperis determinations fornonprisoners); see also Stephen B. Burbank, Of Rules and Discretion: TheSupreme Court, Federal Rules and Common Law, 63 NOTRE DAME L. REV. 693,718 n.186 (1988) ("The proposal is decidedly not that Congressassume primary responsibility for prospective procedural law.").

(176.) See Robert G. Bone, Mapping the Boundaries of a Dispute:Conceptions of Ideal Lawsuit Structure from the Field Code to theFederal Rules, 89 COLUM. L. REV. 1, 80 (1989) ("The federal ruledrafters... relied to a large extent on trial judge discretion to shapeoptimal lawsuit structure for each dispute."); Gardner, supra note98, at 1002 n.327 (noting that "rules are often rounded at theedges as decisionmakers chafe at their under- oroverinclusiveness"); Tobias Barrington Wolff, Discretion in ClassCertification, 162 U. PA. L. REV. 1897,1941-43 (2014) (advocating for adiscretionary "safety valve" for class action rules).

(177.) Congress is increasingly unproductive. See Vital Statisticson Congress, BROOKINGS tbl.6-4 (Apr. 18, 2014),https://www.brookings.edu/wp-content/uploads/2016/06/Vital-Statistics-Chapter-6-Legislative-Productivity-in-Congress-and-WorldoadUPDATE.pdf[https://perma.cc/HKV7-HVBP] (showing the number of bills enacted byCongress decreasing every session since the 108th Session (2003-2004)).

(178.) See Amy Coney Barrett, The Supervisory Power of the SupremeCourt, 106 COLUM. L. REV. 324, 332-33 (2006) (explaining that the Courtuses supervisory power to "announce procedural rules not otherwiserequired by Congress or the Constitution").

(179.) See Rules Enabling Act of 1934, Pub. L. No. 73-415, 48 Stat.1064 (codified as amended at 28 U.S.C. [section][section] 2072-2074(2018)) (vesting in the Judicial Conference the power to initiateamendments to the rules, and thus to forms like AO 239and AO 240); JamesC. Duff, Overview for the Bench, Bar, and Public: The Federal Rules ofPractice and Procedure, ADMIN. OFF. U.S. CTS.,http://www.uscourts.gov/rules-policies/about-rulemalcing-process/how-rulemaking-process-works/overview-bench-bar-and-public[https://perma.cc/AG6Y-78NX]; see also Judith Resnik, The Federal Courtsand Congress: Additional Sources, Alternative Texts, and AlteredAspirations, 86 GEO. L.J. 2589,2601-10 (1998) (discussing the interplaybetween Congress and the federal judiciary); Subrin & Main, supranote 172, at 502 (describing the "lengthy process" of"federal procedural amendments" which "includes review bythe Advisory Committee on Civil Rules, the Committee on Rules ofPractice and Procedure (the 'Standing Committee'), theJudicial Conference of the United States, the United States SupremeCourt, and finally, the United States Congress").

(180.) See supra Section QLB.i; see also D.C. CT. R. [section]15-712, https://www.dccourts.gov/sites/default/files/NEW%2oIFP%2oapplication%2ofill-in-blanks.pdf [https://perma.cc/Z5FR-M989] (using achecldist format to determine eligibility).

(181.) See infra Appendix B. This form is a first attempt tostreamline the IFP process in such a way that would be consistent withgathering enough information to make an accurate determination withoutmaking the process unduly burdensome for litigants and judges. In orderto implement the form effectively, the district courts would most likelyalso need to provide some additional guidance, perhaps in a frequentlyasked questions document.

(182.) Expedited Procedures Pilot Project: Overview, FED. JUD.CTR., https://www.fjc.gov/content/320247/expedited-procedures-pilot-project-overview [https://perma.cc/9QZU-VPCZ]; Mandatory Initial DiscoveryPilot Project Overview, FED. JUD. CTR.,https://www.fjc.gov/content/32i837/mandatory-initial-discovery-pilot-project-overview [https://perma.cc/W2VT-FXD2]; see also William D.Rubenstein, The Concept of Equality in Civil Procedure, 23 CARDOZO L.REV. 1865,1882 (2002) (pointing out that "liberal discovery canalso work against poorer litigants [who] can be flooded with discoveryrequests"); Jeffrey S. Sutton & Derek A. Webb, Bold andPersistent Reform: The 201; Amendments to the Federal Rules of CivilProcedure and the 201J Pilot Projects, JUDICATURE, Autumn 2017, at 12(discussing both pilot projects).

(183.) See Charles E. Clark, Pleading Under the Federal Rules, 12WYO. L.J. 177, 181 (1958) ("We require a general statement [in Rule8]. How much? Well, the answer is made in what I think is probably themost important part of the rules so far as this particular topic isconcerned, namely, the Forms."); Adam N. Steinman, The End of anEra? Federal Civil Procedure After the 201s Amendments, 66 EMORY L.J. 1,9 (2016) ("The Federal Rules illustrated this simpler approach withseveral hypothetical complaints that were included in the rules'appendix.").

(184.) See Sarah Staszak, Procedural Change in the First Ten Yearsof the Roberts Court, 38 CARDOZO L. REV. 691, 715 (2016) (arguing thatby "eliminating] a variety of sample forms available to guideparties during the course of litigation," the Rule 84 amendmentsdid away with tools that "were especially useful for pro se casesand small-firm litigants, who may otherwise lack the access to alternateresources"). For discussion of the rulemaking process in theRoberts Court, see Brooke D. Coleman, One Percent Procedure, 91 WASH. L.REV. 1005 (2016); and Porter, supra note 159, at 124-27.

(185.) See, e.g., A. Benjamin Spencer, The Forms Had a Function:Rule 84 and the Appendix of Forms as Guardians of the Liberal Ethos inCivil Procedure, 15 NEV. L.J. 1113 (2015); Steinman, supra note 183, at9, 51-52.

(186.) See Burbank, supra note 175, at 715 (describing the"trend of modern procedural law" as a move "away fromrules that make policy choices" and "towards those that conferon trial courts a substantial amount of normative discretion").

(187.) See id. at 718 ("Effective procedural reform will notcome from a small group of 'experts,' nor will it come fromthe Supreme Court alone.").

(188.) See Lawrence B. Solum, Procedural Justice, 78 S. CAL. L.REV. 181, 258 (2004) ("Given that the quality of representationdepends on the ability to pay, current civil procedure doctrine wouldseem to provide a systemic distribution of the risk of error in favor ofthose who have the greatest share of social resources."). For anexample of how "[a] focus on outsiders reveals how law intersectswith their forced marginalization," see Guadalupe T. Luna,"Facts Are Stubborn Things:" Irregular Housing in the TexasColonias, 28 Wis. J.L. GENDER & SOC'Y 121,128 n.41 (2013).

(189.) For an example of quantitative analysis of federal districtcourt practice, see Miguel de Figueiredo et al., Against JudicialAccountability: Evidence from the Six Month List (unpublishedmanuscript) (Feb. 20, 2018), https://ssrn.com/abstract=2o89777.

(190.) For an example of how qualitative research can build legaltheory, see Monica C. Bell, Police Reform and the Dismantling of LegalEstrangement, 126 YALE L.J. 2054 (2017).

(191.) See Abbe R. Gluck, Unorthodox Civil Procedure: ModernMultidistrict Litigation's Place in the Textbook Understandings ofProcedure, 165 U. PA. L. REV. 1669,1709-10 (2017) (comparing "therise of non-traditional omnibus legislation" as "a symptom ofthe bigger problems of legislative gridlock and overwhelming regulatorycomplexity" with "the rise of multidistrict litigation as"a sign of deeper pressures on the traditional model ofprocedure").

(192.) See Thomas O. Main, Procedural Constants: How Delay AversionShapes Reform, 15 NEV. L.J. 1597, 1613 (2015) (arguing that"[ajlthough big cases constitute a small percentage of federalcourt litigation, the problems with big cases tend to dominate popularnarratives about civil litigation and tend to fuel reforms that affectall cases, rather than only the big cases"); see also Charles E.Clark, Special Pleading in the "Big Case," 21 F.R.D. 45, 47(1957); cf. Gluck, supra note 191,1709-10.

(193.) See, e.g., William J. Stuntz, Plea Bargaining and theCriminal Law's Disappearing Shadow, 117 HARV. L. REV. 2548 (2004);ISSA KOHLER-HAUSMANN, MISDEMEANORLAND 12 (2018) (citing Stuntz'sarticle as one example of an approach that maintains that"statutorily authorized punishments and legal rules offer littleguidance to the empirical regularities of existing criminal courts andcriminal punishment"). This comparative strength in criminalprocedure may reflect the influence of sociology on the study ofpunishment more generally. See Tracey L. Meares, Norms, Legitimacy andLaw Enforcement, 79 OR. L. REV. 391, 394-95 (2000) (drawing onsociological theory for an ecological understanding of poverty, crime,and marginalization); Calvin Morrill et al., Seeing Crime and PunishmentThrough a Sociological Lens: Contributions, Practices, and the Future,2005 U. CHI. LEGAL F. 289, 291 (contrasting European sociology ofcrime's "top-down" approach with the "long traditionin American sociology of 'bottom-up' inquiry").

(194.) KOHLER-HAUSMANN, supra note 193, at 13; see also MONA LYNCH,HARD BARGAINS: THE COERCIVE POWER OF DRUG LAWS IN FEDERAL COURT 2-7(2016) (arguing that the severity of federal drug laws allowsprosecutors near-unilateral power to dictate punishments); IssaKohler-Hausmann, Jumping Bunnies and Legal Rules: The OrganizationalSociologist and the Legal Scholar Should Be Friends, in THE NEW CRIMINALJUSTICE THINKING 246, 266 (Sharon Dolovich & Alexandra Natapoffeds., 2017) (discussing how the interplay of formal law and extralegalforces "generates a set of research questions about how legal rulesare fundamentally always interpolated into the course of ongoingactivity").

(195.) KOHLER-HAUSMANN, supra note 193, at 13; see also AndrewManuel Crespo, The Hidden Law of Plea Bargaining, 118 COLUM. L. REV.1303, 1373 (2018) (observing that "[f]ew scholars of Americancriminal justice doubt that such extralegal forces--ranging fromresource imbalances between prosecutors and defendants, to informalinstitutional norms and practices, to the complex power dynamicsassociated with race, gender, and class--produce sometimes-sizable gapsbetween the criminal law codified on the books and the criminal lawimplemented on the ground").

(196.) See Gideon v. Wainwright, 372 U.S. 335, 343-45 (1963);Thomas H. Cohen, Who Is Better at Defending Criminals? Does Type ofDefense Attorney Matter in Terms of Producing Favorable Case Outcomes,25 CRIM. JUST. POL'Y REV. 29, 35 (2014) (reporting defendantindigency rates of about eighty percent in felony cases). Of course,this contrast between civil procedure and criminal procedure is not tosuggest that Gideon's legacy is free of criticism. See, e.g., EveBrensike Primus, Culture as a Structural Problem in Indigent Defense,100 MINN. L. REV. 1769, 1769 (2016) (observing that "too manylawyers appointed to represent poor criminal defendants do not performtheir intended role in the system, because they have been conditionednot to fight for their clients").

(197.) See, e.g., Alexandra Natapoff, Gideon's Servants andthe Criminalization of Poverty, 12 OHIO ST. J. CRIM. L. 445, 449 (2015)(arguing that "the formalist Gideon framework... falls apart as adescriptive mechanism at the bottom").

(198.) William J. Stuntz, Substance, Process, and theCivil-Criminal Line, 7 J. CONTEMP. LEGAL ISSUES 1, 4 (1996) (noting that"the provision of counsel and counsel's performance,discovery, settlements, the questioning of witnesses, the disposition ofcases that don't go to the jury--all issues that have beenconstitutionalized in criminal cases--are in civil cases governed byrules of civil procedure, by statute, by nonconstitutional common law,or by local custom."); see also Carol S. Steiker, Punishment andProcedure: Punishment Theory and the Criminal-Civil Procedural Divide,85 GEO. L.J. 775, 777-78 (1997). But see Crespo, supra note 195, at 1310(arguing that, to the contrary, there is a "surprising degree ofprocedural--and thus regulatory--heterogeneity" in pleabargaining).

(199.) See JERRY L.MASHAW, BUREAUCRATIC JUSTICE 3 (1983)(discussing the origin of the "due process revolution" inadministrative law); Charlotte S. Alexander & Arthi Prasad,Bottom-Up Workplace Law Enforcement: An Empirical Analysis, 89 IND. L.J.1069, 1119 (2014) (arguing that "the current system of bottom-upworkplace law enforcement relies too heavily on workers themselves to beclaims-makers"); Deborah E. Anker, Legal Change from the Bottom Up:The Development of Gender Asylum Jurisprudence in the United States, inGENDER IN REFUGEE LAW: FROM THE MARGINS TO THE CENTRE 46, 67 (EfratArbel et al. eds., 2014) (identifying "a ground-level jurisprudencethat is having significant impact on other aspects of refugee law anddecision-making institutions including at higher levels"); Jonah B.Gelbach & David Marcus, Rethinking Judicial Review of High VolumeAgency Adjudication, 96 TEX. L. REV. 1097,1148-60 (2018) (discussing theresults of a multiyear study of social security disability benefitslitigation in the federal courts); Joseph Landau, BureaucraticAdministration: Experimentation and Immigration Law, 65 DUKE L.J. 1173,1177 n.13 (2016) (modeling "an inquiry into lower-levelexpertise" that "has the benefit of refocusing analysis on acritical expertise rationale for administrative action that has tendedto erode over time.).

(200.) See, e.g., MICHAEL LIPSKY, STREET-LEVEL BUREAUCRACY, at xii(1980) (relating how "the decisions of street-level bureaucrats,the routines they establish, and the devices they invent to cope withuncertainties and work pressures, effectively become the public policiesthey carry out."); see also Matthew Diller, The Revolution inWelfare Administration: Rules, Discretion, and EntrepreneurialGovernment, 75 N.Y.U. L. REV. 1121,1129 (2000) (noting a "newadministrative paradigm" that reflects "an increase in thepower that ground-level administrators wield over benefitrecipients.").

(201.) Burbank, supra note 175, at 715 (describing how "thebanner of simplicity and predictability under which [the Federal Rules]fly is by now false advertising" because "[l]itigants andcourts need more guidance than the Federal Rules provide, and to find itthey must turn to a bewildering array of local rules, standing orders,and standard operating procedures, to say nothing of case law.").

(202.) See, e.g., Coleman, supra note 184, at 1009 (discussing thisneglect). The lack of attention is not limited to proceduralists. SeeResnik, supra note 116, at 1831 (noting that at the "1995 JudicialConference" there was concern "that the federal courts wouldbecome places for poor people and criminal defendants, rather thanattract a mix of investments from a diverse set of litigants");Bertrall L. Ross II & Su Li, Measuring Political Power: SuspectClass Determinations and the Poor, 104 CALIF. L. REV. 323, 327 n.13(2016) (noting that "[a] surprisingly small number of scholars havedevoted sustained attention to the constitutional status of thepoor").

(203.) See, e.g., John H. Langbein, The Disappearance of CivilTrial in the United States, 122 YALE L.J. 522 (2012).

(204.) See, e.g., Nora Freeman Engstrom, The Diminished Trial, 86FORDHAM L. REV. 2131 (2018).

(205.) See, e.g., Gillian K. Hadfield, The Price of Law: How theMarket for Lawyers Distorts the Justice System, 98 Mich. L. Rev. 953(2000); Michael Zuckerman, Is There Such a Thing as an AffordableLawyer?, ATLANTIC (May 30, 2014),https://www.theatlantic.com/business/archive/2014/o5/is-there-such-a-thing-as-an-affordable-lawyer/371746 [https://perma.cc/HB2X-9UYW].

(206.) See, e.g., Richard D. Freer, Exodus from and Transformationof American Civil Litigation, 65 EMORY L.J. 1491 (2016); Paul R.Verkuil, Privatizing Due Process, 57 ADMIN. L. REV. 963, 983 (2005)(noting how the Supreme Court has characterized "arbitration as analternative to judicial decisionmaking").

(207.) See, e.g., William M. Richman, Rationing Judgeships Has Lostit* Appeal, 24 PEPP. L. REV. 911, 912 (1997) (identifying how appellatepractice has "created different tracks of justice for differentcases and different litigants"); William M. Richman & WilliamL. Reynolds, Elitism, Expediency, and the New Certiorari: Requiem forthe Learned Hand Tradition, 81 CORNELL L. REV. 273, 277 (1996)("Federal appellate courts are treating litigants differently, adifference that generally turns on a litigant's ability to mobilizesubstantial private legal assistance.").

(208.) See, e.g., Robert H. Klonoff, The Decline of Class Actions,90 WASH. U. L. REV. 729 (2013); see also Maureen Carroll, Class ActionMyopia, 65 DUKE L.J. 843, 844 (2016) ("It has become a commonplaceto say that the class action is dying, or at least, that courts andlawmakers are trying to kill it."); A. Benjamin Spencer, TheRestrictive Ethos in Civil Procedure, 78 GEO. WASH. L. REV. 353 (2010);Stephen N. Subrin & Thomas O. Main, The Fourth Era of American CivilProcedure, 162 U. PA. L. REV. 1839, 1853 (2014) (discussing "theattack on class actions"). For earlier prognoses of some of thesephenomena, see Judith Resnik, Failing Faith: Adjudicatory Procedure inDecline, 53 U. CHI. L. REV. 494, 508 (1986); and Jack B. Weinstein, TheGhosts of Process Past: The Fiftieth Anniversary of the Federal Rules ofCivil Procedure and Erie, 54 BROOK. L. REV. 1, 3, 23-30 (1988), whichdiscusses whether the Rules have become "stingier."

(209.) See, e.g., Stephen B. Burbank, The Costs of Complexity, 85MICH. L. REV. 1463, 1470 (1987) (warning that "so long asdiscretion dominates procedure, procedure will dominate substantivelaw"); Thomas O. Main, The Procedural Foundation of SubstantiveLaw, 87 WASH. U. L. REV. 801, 818-22 (2010) (explaining how procedurecan favor certain groups over others); Suzette Malveaux, A Diamond inthe Rough: Trans-Substantivity of the Federal Rules of Civil Procedureand Its Detrimental Impact on Civil Rights, 92 WASH. U. L. REV. 455,484-508 (2014) (arguing that civil rights claimants "have been hitparticularly hard by increasingly restrictive applications andinterpretations of Rule 23"); Elizabeth M. Schneider, The ChangingShape of Federal Civil Pretrial Practice: The Disparate Impact on CivilRights and Employment Discrimination Cases, 158 U. PA. L. REV. 517, 520(2010) (arguing that "the changing nature of pretrialpractice" disproportionately affects "civil rights andemployment discrimination cases").

(210.) See, e.g., Coleman, supra note 184, at 1015-23 (2016)(discussing the role of the Judicial Conference) ; Michele Gilman, ACourt for the One Percent: How the Supreme Court Contributes to EconomicInequality, 2014 UTAH L. REV. 389, 405-410 (discussing the role of theSupreme Court in this area); Arthur R. Miller, Simplified Pleading,Meaningful Days in Court, and Trials on the Merits: Reflections on theDeformation of Federal Procedure, 88 N.Y.U. L. REV. 286, 304 (2013)(describing the Roberts Court as having "placed a thumb on thejustice scale favoring corporate and government defendants");Howard M. Wasserman, The Roberts Court and the Civil Procedure Revival,31 REV. LITIG. 313, 332 (2012) (concluding that the "Roberts Courthas shown similar hostility to litigation as a means of vindicatinglegal rights" and that "this Court's hostility manifestsitself in general procedural doctrine").

(211.) 424 U.S. 319, 335 (1976); see also Martin H. Redish &Lawrence C. Marshall, Adjudicatory Independence and the Values ofProcedural Due Process, 95 YALE L.J. 455,468 (1986) (characterizing theMathews test as requiring that "[t]he probable value of additionalprocedural safeguards in protecting an interest [be] weighed against thestate's fiscal and administrative burden in providing them").

(212.) Lassiter v. Dep't of Soc. Servs., 452 U.S. 18, 27(1981).

(213.) Heller v. Doe, 509 U.S. 312, 330 (1993).

(214.) Wilkinson v. Austin, 545 U.S. 209, 224 (2005).

(215.) Turner v. Rogers, 564 U.S. 431, 444 (2011). But seeDusenbery v. United States, 534 U.S. 161, 168 (2002) (disclaiming thatMathews is "an all-embracing test for deciding due processclaims").

(216.) Hamdi v. Rumsfeld, 542 U.S. 507, 528-29 (2004) (pluralityopinion) ("The ordinary mechanism that we use for balancing suchserious competing interests, and for determining the procedures that arenecessary to ensure that a citizen is not 'deprived of life,liberty, or property, without due process of law' is the test thatwe articulated in Mathews v. Eldridge." (citation omitted) (quotingU.S. CONST, amend. V)).

(217.) See Burbank, supra note 175, at 716 (identifying the twostrategies that "have dominated recent efforts of the rulemakersand debate in the literature" as efforts "to enhance the powerof trial judges to manage litigation" and efforts "to enhanceincentives for people to avoid litigation").

(218.) See Judith Resnik, Managerial Judges, 96 HARV. L. REV. 374,435 (1982) (suggesting that "scarce judicial resources should beconserved and employed only when judges' specialskill--adjudication--is required").

(219.) See, e.g., DEBORAH L. RHODE, ACCESS TO JUSTICE 3-25 (2004)(discussing trade-offs in reform attempts); Danya Shocair Reda, TheCost-and-Delay Narrative in Civil Justice Reform: Its Fallacies andFunctions, 90 OR. L. REV. 1085, 1107-08 (2012) (exploring why thisperception of a trade-off between access and cost persists among judgesand scholars).

(220.) See SARAH STASZAK, NO DAY IN COURT: ACCESS TO JUSTICE ANDTHE POLITICS OF JUDICIAL RETRENCHMENT 219 (2015) (locating thedevelopment of the term "access to justice" in the 1970s byactivists, the ABA, and the LSC).

(221.) Frank I. Michelman, The Supreme Court and Litigation AccessFees: The Right to Protect One's Rights--Part 1, 1973 DUKE L.J.1153,1172. Over the last half century, other scholars have sought toarticulate the values of due process. See, e.g., Owen M. Fiss, TheSupreme Court, 19/8 Term-Foreword: The Forms of Justice, 93 HARV. L.REV. 1, 24 (1979) (articulating the importance of a judge"assum[ing] a more active role in the litigation, to make certainthat he is fully informed and that a just result will be reached");Jerry L. Mashaw, The Supreme Court's Due Process Calculus forAdministrative Adjudication in Mathews v. Eldridge: Three Factors inSearch of a Theory of Value, 44 U. CHI. L. REV. 28,52 (1976) (notingthat, in procedural systems, " [j]ustice in a formal philosophicalsense is often defined as equality of treatment"); Resnik, supranote 218, at 430 (identifying three "values of due process"including "the accuracy of decisionmaking, the adequacy ofreasoning, and the quality of adjudication"); cf. Jerry L. Mashaw,Administrative Due Process: The Quest for a Dignitary Theory, 61 B.U.L.REV. 885, 899 (1981) (admitting that "equality is a notoriouslyslippery concept, and its procedural implications are puzzling").See generally Rubenstein, supra note 182, at 1915 (discussing thisscholarship).

(222.) Relatedly, civil procedure scholars have yet to embrace theemphasis on the role of social movements in shaping law, a mode ofanalysis that shares much with a bottom-up approach. See, e.g., Scott L.Cummings, The Social Movement Turn in Law, 43 LAW & Soc. INQUIRY360, 364 (2018) (describing "how movement liberalism has beenpresented within legal scholarship as a way of reasserting a politicallyproductive relationship between courts, lawyers, and social change fromthe bottom up"). Legal historians have increasingly borrowed andcontributed to the broader historiography of social history. See TOMIKOBROWN-NAGIN, COURAGE TO DISSENT: ATLANTA AND THE LONG HISTORY OF THECIVIL RIGHTS MOVEMENT 11 (2011) (arguing that "the relationshipbetween law and social change looks different when viewed from thebottom-up perspective"); see also RISA GOLUBOFF, VAGRANT NATION :POLICE POWER, CONSTITUTIONAL CHANGE, AND THE MAKING OF THE 1960s (2016);KAREN M. TANI, STATES OF DEPENDENCY: WELFARE, RIGHTS, AND AMERICANGOVERNANCE, 1935-1972 (2016).

(223.) See Issachar Rosen-Zvi & Talia Fisher, OvercomingProcedural Boundaries, 94 VA. L. REV. 79, 133 (2008) (arguing that the"civil-criminal procedural dichotomy is inappropriate for therealities of the twenty-first century").

(224.) Courts often characterize civil procedure as appropriatelydeficient compared to criminal procedure. The Supreme Court hasjustified this discrepancy in the relative lack of proceduralprotections for civil matters on the grounds that in those proceedingsthe interests at stake are not as serious. See, e.g., Lassiter v.Dep't of Soc. Servs., 452 U.S. 18, 25 (1981) (noting that "anindigent's right to appointed counsel... has been recognized toexist only where the litigant may lose his physical liberty if he losesthe litigation" and emphasizing that "it is thedefendant's interest in personal freedom" that drives thatresult). But see id. at 41 n.8, 42 (Blackmun, J., dissenting)(criticizing the majority for "emphasizing the value of physicalliberty to the exclusion of all other fundamental interests" and"opting for the insensitive presumption that incarceration is theonly loss of liberty sufficiently onerous to justify a right toappointed counsel"); Douglas J. Besharov, Terminating ParentalRights: The Indigent Parent's Right to Counsel After Lassiter v.North Carolina, 15 FAM. L.Q. 205, 221 (1981)("Lassiter, for allpractical purposes, stands for the proposition that a drunkendriver's night in the cooler is a greater deprivation of libertythan a parent's permanent loss of rights in a child.").

(225.) See, e.g., Beth A. Colgan, Graduating Economic SanctionsAccording to Ability to Pay, 103 IOWA L. REV. 53, 73-95 (2017)(discussing how states have experimented with different ability-to-paydeterminations in the context of bail); Neil L. Sobol, Charging thePoor: Criminal Justice Debt & Modern-Day Debtors' Prisons, 75MD. L. REV. 486, 527 (2016); Crystal S. Yang, Toward an Optimal BailSystem, 92 N.Y.U. L. REV. 1399, 1472-73 (2017).

(226.) Nor should this research be confined to the federal courts.Civil litigation in state courts could also benefit from careful studyusing this approach.

(227.) See William H.J. Hubbard, A Fresh Look at PlausibilityPleading, 83 U. CHI. L. REV 693, 700 (2016) (suggesting that"special care may need to be reserved for pro se and IFP plaintiffsin the application of pleading standards").

(228.) See id. at 740 (concluding that the Twiqbal empiricalstudies that include pro se and IFP cases "offer suggestiveevidence that pro se and IFP plaintiffs are, in fact, more affected bypleading standards than represented plaintiffs" (citing ScottDodson, A New Look: Dismissal Rates of Federal Civil Claims, JUDICATURE,Nov./Dec. 2012, at 127, 130-32,134)); see also Theodore Eisenberg &Kevin M. Clermont, Plaintiphobia in the Supreme Court, 100 CORNELL L.REV. 193, 206-07 (2014). But see David Freeman Engstrom, The TwiqbalPuzzle and Empirical Study of Civil Procedure, 65 STAN. L. REV.1203,1230-34 (2013) (laying out the limitations of empirical studies ofBell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v.Iqbal, 556 U.S. 662 (2009)).

(229.) See Mandatory' Initial Discovery Pilot ProjectOverview, supra note 182; see also J. Maria Glover, The Federal Rides ofCivil Settlement, 87 N.Y.U. L. REV. 1713, 1731 (2012) (pointing out that"plenary discovery process also enables the imposition ofsignificant asymmetric costs upon plaintiffs"); sources cited supranote 182.

(230.) See, e.g., D. VT. R. 45 (giving the district courtdiscretion to "decline to subpoena a witness whose proposedtestimony is immaterial or repetitive" only in in forma pauperisand pro se cases); Grostic, supra note 15 (recounting how a case broughtby an in forma pauperis litigant was transferred to a particular judgeper local administrative rule).

(231.) Camus wrote, "I should like to be able to love mycountry and still love justice." ALBERT CAMUS, LETTRES A UN AMIALLEMAND 20 (1945) ("Et je voudrais pouvoir aimer mon pays tout enaimant la justice.").

(232.) The following tables include both Article III districtcourts and Article I federal district courts for Guam, the NorthernMariana Islands, and the Virgin Islands. See 48 U.S.C.[section][section] 1424,1611, 1821 (2018).

(233) The Western District of Louisiana's form does ask theindividual to "[l]ist [his or her] monthly living expenses."Application to Proceed In Forma Pauperis Under Section 706 (f) of the CMRights Act of 1964, U.S. DISTRICT CT. TOR W. DISTRICT LA. 3 (Dec.6,2012), https://www.lawd.uscourts.gov/sites/lawd/files/UPLOADS/LAWD_IFP_Non_Prisoner.pdf [https://perma.cc/DL3T-DUU2].

(234.) I could not find any in forma pauperis application orstandard in South Dakota law or in the state's court rules.

(235.) The author and publisher expressly disclaim any copyrightownership in this IFP form. However, all other contents of this Articleare protected under copyright law and are the exclusive property of theauthor and publisher.