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
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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)