ABSTRACT
As persistent threats to the integrity of some of our most important public institutions remind us, every public institution faces the challenge of combating the abuse of its powers for ends inconsistent with the public values it aims to serve. Public law employs a distinctive set of strategies for addressing that challenge: vesting institutional powers with public officials, imposing public-regarding duties on those officials, and ensuring compliance with the duties by subjecting officials’ decisions to various forms of oversight and accountability.
This Article argues that the public institution of civil litigation pursues a very different strategy for countering abuse from public law’s, one that belies predominant scholarly understandings of civil procedure and reveals an inherent, ineliminable tension within any liberal civil justice system between the impartial public values such a system espouses and the significant degree of partiality it must permit parties to display for their own personal interests, relationships, and moral beliefs. Parties can end up exercising their partiality by engaging in litigation conduct that contravenes important public values. And yet, it turns out that civil procedure doesn’t always suppress such conduct, but often tolerates, and sometimes even facilitates, it. The result is that civil procedure frequently declines to compel parties to internalize all the moral costs of their litigation conduct, thus affording them a series of moral subsidies. Those moral subsidies, this Article contends, are best understood as a kind of accommodation, which in other contexts has been theorized as the tolerated externalization of some of the costs – including the moral costs – of individual conduct for the sake of autonomy and other personal values.
By better comprehending civil procedure’s accommodations and their normative logic, we can more readily appreciate conflicts between parties’ personal interests and moral beliefs, on the one hand, and, on the other, the public values we expect the civil justice system to reflect or promote, as well as more candidly debate the resulting value tradeoffs. And while those tradeoffs are inevitable, this Article identifies current practices in civil procedure that appear either to confer significant moral subsidies even in the absence of substantial personal interests or to fail to adequately accommodate such interests. The most fundamental lesson of civil procedure’s accommodations, however, is that, in contrast both to public law’s strategies for addressing abuse and to prevailing accounts of civil procedure, litigation’s adversarial architecture constrains – and often compromises – the pursuit of public values through the civil justice system in order to respect parties’ competing pursuit of their own personal interests and moral beliefs.
Shapiro, Matthew A, Litigation as Accommodation (September 18, 2024), Rutgers Law School Research Paper (forthcoming); UC Law Journal, Forthcoming.
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