Vol. LVI No. 5

The Efficiency Norm

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 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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