Rick Marcus on Zero-Sum Procedure Wars

Published on: Author: Scott Dodson

America seems mired in a highly partisan and polarized political era. The truth is that we have been so for some time, and that the polarization has infected the most apolitical of legal subjects: civil procedure. The Federal Rules of Civil Procedure have always been adventuresome, at least in the eyes of the rest of the world, but they also have purported to be above the political fray, with lofty and unobjectionable goals of justice and efficiency.

In a chapter titled “Misgivings About American Exceptionalism: Court Access as a Zero-Sum Game,” in the book Revisiting Procedural Human Rights: Fundamentals of Civil Procedure and the Changing Face of Civil Justice (Alan Uzelac & C.H. van Rhee eds. 2017), my esteemed colleague Rick Marcus chronicles the evolving conception of federal court-access rules as a zero-sum game between plaintiffs and defendants. Reform efforts since the 1970s have tended to go defendants’ way, but the reactions from both plaintiffs and defendants sound in game theory. According to defendants, such reforms are necessary because excessive court access permits low-merit cases to blackmail defendants into unjust settlements rather than face expensive discovery and bet-the-company verdicts. According to plaintiffs, such reforms prevent legitimate claims—for both individuals and society at large—from reaching a full and fair hearing. It is easy to visualize that reforms placing a thumb on one side of the scales of justice produces an equivalent, if inverse, effect on the other side.

Professor Marcus does not take sides in this zero-sum game but rather reflects on the game itself and, in his customary way, extracts global insights. As the game’s tide has turned, so has American procedure moved more toward European norms, and comparativist arguments have infiltrated the domestic debate on procedural reform. But things are complicated. American procedural exceptionalism has deep roots in facilitating what amounts to a private supplement to America’s hands-off (compared to Continental regimes) approach to governmental regulation and social insurance. Whether the current polarization of procedure leaves room for further convergence, then, remains to be seen.