The Efficiency Norm

INTRODUCTIONAs 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 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 to plaintiff skepticism. 4 For example, when the Federal Rules of Civil Procedure ("Civil Rules") were adopted in 1938, the rule drafters assumed that the ultimate goal of the system was to prepare each case for a trial on the merits.5 Modern rulemaking bears little resemblance to this past. The presumption is not one of trial on the merits, but is instead one of non-trial adjudication, whether that be by pre-trial disposition, settlement, or alternative dispute resolution.6 The second shift- from plaintiff receptivity to plaintiff skepticism-concerns how the system views plaintiff requests, not just for relief but also for progressive steps within the system. For instance, the initial presumption under the Federal Rules of Civil Procedure was to provide plaintiffs with access to discovery. The rules were fashioned with broad definitions of relevance and a system by which the producing party would have to demonstrate excessive cost or burden in order to resist production. The currently proposed amendments to the discovery rules-requiring a demonstration of proportionality in order to gain access to information-are but one example of how the discovery system has shifted from a presumption of plaintiff receptivity to a presumption of plaintiff skepticism.7 Like the attitudes toward trial, this plaintiff receptivity-to-skepticism presumption has shifted at all levels of the civil litigation system.8 These shifts, the Article argues, are unwarranted both because they rely on a false conception of efficiency and because they further de-democratize the civil litigation system.Although scholars have examined the time-worn tension between efficiency and justice, little work has been done to unpack and critique the efficiency norm itself. Scholars have adeptly critiqued the resulting civil litigation system for losing the civil trial,9 for being hostile to particular kinds of plaintiffs,10 and for becoming too cost-conscious. …