Private Law Theory

ABSTRACT
Litigation is a strategic enterprise, by design. Not only is it impossible to design rules of procedure that account for every circumstance; our adversarial system gives litigants strategic maneuvering room that could be eliminated but has not been. Although procedural rules regulate many aspects of civil litigation and have significantly reduced opportunities for strategy and surprise, the ‘sporting theory of justice’ that John Henry Wigmore and Roscoe Pound railed against a century ago is still very much alive.

This Article explores the tension between, on the one hand, well-established goals of the judicial system – accuracy, fairness, efficiency, etc – and the room that exists for litigants to engage in a vigorous adversarial context (‘strategy space’). It canvases strategy space in contemporary civil litigation and argues that there exists an implicit appreciation of strategy in the legal system, sometimes in direct conflict with recognized procedural values. It concludes that some strategy exists ‘for strategy’s sake’ – as a procedural value in itself.

It is important to recognize the role of strategy in litigation, because an acceptance of strategic maneuvering room is an implicit grant of power to represented, resourced parties. These parties are able to make optimal choices where the law provides choice, and exploit ambiguities and other room for strategic maneuvering, to the detriment of unrepresented, less resourced litigants.

Beerdsen, Edith, Strategy for Strategy’s Sake (August 2, 2024), Temple University Legal Studies Research Paper, Forthcoming; North Carolina Law Review (2025), Forthcoming.