The Efficiency Norm

Boston College Law Review, Dec 2015

Efficient is not synonymous with inexpensive. Rather, it refers to an optimal tradeoff between cost and function; a system may simultaneously become less expensive and less efficient, if cost savings are offset by loss of productivity. Yet, this Article argues that if we conceive of the rules and doctrines governing civil procedure as a product, the Judiciary, Congress, and federal civil rulemakers have confused cheap with efficient. They have made this version of “efficiency”—what this Article calls the efficiency norm—the dominant norm of the civil litigation system. This efficiency norm is problematic because institutional actors falsely equate efficiency with the idea that litigation must simply become cheaper. This has led to two profound shifts in key presumptions underlying civil litigation: the shift from a merits-based trial to non-trial adjudication and the shift from plaintiff receptivity to plaintiff skepticism. The Article argues that under a real efficiency analysis—one that weighs both the benefits and costs of making litigation cheaper—these now-dominant civil litigation presumptions are dangerous and unwarranted because they further de-democratize civil litigation. Finally, this Article argues that the efficiency norm must be reclaimed. It proposes a reframed definition of efficiency and argues that such a definition will enable a better assessment and recalibration of the civil litigation system.

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The Efficiency Norm

hTe E fic iency Norm Brooke D. Coleman 0 1 0 Seattle University School of Law 1 Thi s Article is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Law Review by an authorized editor of Digital Commons @ Boston College Law School. For more information , please contact Follow this and additional works at: http://lawdigitalcommons.bc.edu/bclr Part of the Civil Law Commons, Civil Procedure Commons, and the Legal Profession Commons Recommended Citation Brooke D. Coleman, Th e Efficiency Norm, 56 B.C.L. Rev. 1777 (2015), http://lawdigitalcommons.bc.edu/bclr/vol56/iss5/4 - Article 4 Abstract: Efficient is not synonymous with inexpensive. Rather, it refers to an optimal tradeoff between cost and function; a system may simultaneously become less expensive and less efficient, if cost savings are offset by loss of productivity. Yet, this Article argues that if we conceive of the rules and doctrines governing civil procedure as a product, the Judiciary, Congress, and federal civil rulemakers have confused cheap with efficient. They have made this version of “efficiency”—what this Article calls the efficiency norm—the dominant norm of the civil litigation system. This efficiency norm is problematic because institutional actors falsely equate efficiency with the idea that litigation must simply become cheaper. This has led to two profound shifts in key presumptions underlying civil litigation: the shift from a merits-based trial to non-trial adjudication and the shift from plaintiff receptivity to plaintiff skepticism. The Article argues that under a real efficiency analysis—one that weighs both the benefits and costs of making litigation cheaper—these nowdominant civil litigation presumptions are dangerous and unwarranted because they further de-democratize civil litigation. Finally, this Article argues that the efficiency norm must be reclaimed. It proposes a reframed definition of efficiency and argues that such a definition will enable a better assessment and recalibration of the civil litigation system. INTRODUCTION As even the most novice student of economics knows, the term efficient is not synonymous with inexpensive. Yet, if we conceive of the rules and doctrines governing procedure as a product, the Judiciary, Congress, and federal civil rulemakers are giving us a product that is cheap and calling it efficient. Efficiency—in and of itself—is not an odious normative value. Defined accurately, efficient changes to the rules and doctrines governing the civil litigation system would balance all costs and benefits, both pecuniary and nonpecuniary.1 Efficiency would indeed be a worthy goal because it © 2015, Brooke D. Coleman. All rights reserved. *Associate Professor of Law, Seattle University School of Law. Many thanks to Janet Alexander, Robert Chang, Zachary Clopton, Diane Dick, Scott Dodson, Charlotte Garden, Maggie Gardner, Paul Holland, Lily Kahng, Jack Kirkwood, Ronald Krotoszynski, James Puckett, Aaron Kaplan, Elizabeth Porter, Alex Reinert, Anna Roberts, Suja Thomas, and David Skover who commented on various drafts. I am grateful for the comments I received at the First Annual Civil Procedure Workshop, New Mexico School of Law Faculty Colloquia, and 2015 Law & Society Annual Meeting. 1 See infra notes 259–270 and accompanying text. would make the whole system work better. Stated differently, true efficiency would produce high-value civil procedure. The key, and this Article’s critique, is that institutional actors are using a flawed definition of efficiency—what this Article calls the efficiency norm.2 This faulty conception of efficiency is not producing high-value procedure, but is instead resulting in cut-rate procedural rules and doctrines. The misapprehension of what efficiency really means is highly problematic. First, the focus on simple costs too narrowly defines efficiency and incorrectly excludes a comprehensive set of costs that, although more difficult to quantify, are critical to an accurate measure of efficiency. From proposed changes to the discovery rules, to U.S. Supreme Court decisions about pleading and arbitration, changes are justified by reasoning that they will lower the cost of litigation.3 Yet, institutional actors tend to rely on a narrow category of costs that measure how much a defendant or plaintiff will have to pay at each litigation moment. Costs that are more difficult to quantify, such as the cost of mistakenly filtering out meritorious claims, are left out of the analysis. Relatedly, measurable benefits are not given adequate weight; mere financial costs are privileged above all other interests. Second, institutional actors’ commitment to the efficiency norm has contributed to a shift in key presumptions underlying civil litigation in two critical ways: the shift from a merits-based trial to non-trial adjudication and the shift from plaintiff receptivity (...truncated)


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Brooke D. Coleman. The Efficiency Norm, Boston College Law Review, 2015, Volume 56, Issue 5,