A burgeoning procedural literature explores the power of parties to alter the procedural entitlements of the civil-justice system by means of contractual agreement and the limits of that power. The most dramatic example of such bargaining is the agreement to arbitrate, although bargaining also can occur within the context of a civil lawsuit. As Ronen Avraham, William Hubbard, and Itay Lipschits argue in a fascinating new paper, this literature has focused almost exclusively on a single question: which procedures are subject to contractual negotiation and which are not? No one believes that the parties can by contract agree to let the judge flip a coin to determine the winner, but most scholars believe that parties can contract for fewer depositions or requests for production. The debate has centered on distinguishing “core” procedural rights that are not subject to negotiation from non-“core” rights that can be bargained away.
While largely accepting that distinction, the authors challenge extant efforts to establish the limits of procedural flexibility by means of this “core” metric. They make two critical points. First, the distinction between the core that is non-negotiable and the non-core procedural rights subject to horse-trading is slippery at best. There is widespread agreement that core rights are those whose alteration through party negotiation might impair the interests of third parties, might impose additional burdens on the court, or might impinge on reasoned judicial decision-making. The parties’ inability to contract for a coin flip by the judge falls within this last category. But the sacrifice of non-core rights (say, bargaining away the right to take depositions) can affect the information on which the judge’s decision is based and thus deflate the quality and accuracy of judicial decision-making. Even assuming that lines can be drawn, the authors demonstrate that many “core” rights, which should in theory apply uniformly in all cases, are subject to great variability and flexibility in practice, with different judges (and sometimes even the same judge) adopting different procedures in different cases to reason their way to the result.
The second criticism — and the paper’s critical insight — is the all-or-nothing nature of the distinction.
On the standard scholarly account, any right within the core applies uniformly in all civil cases; any right outside the core is always subject to negotiation. Avraham, Hubbard, and Lipschits argue that this rigidity fails to recognize two additional dimensions along which cases can be procedurally flexible. One dimension is the nature of the lawsuit — perhaps the core is large in cases of significant social or legal import and small in cases the authors call “routine” (for the most part, cases presenting only factual disputes whose resolution matters only to the parties themselves). The parties should be unable to bargain away most rights in non-routine cases; even a bargain to limit the number of depositions may be off limits if it unduly affects the quality of information available to the judge making a decision likely to have broad precedential effect. Conversely, when the outcome of a case has no effect beyond the parties to the dispute, they should be able to structure the dispute-resolution process in almost any way they wish.
The other dimension that should bear on the question of procedural flexibility is methods or means. Here the authors launch their most provocative claim: that we should create markets in procedural entitlements. As the authors correctly point out, all the literature on the limits of procedural flexibility through contractual modification assumes that the negotiation occurs only between the parties to the suit: if the defendant wants to take more (or fewer) depositions, he must bargain with the plaintiff to make that deal. “Why?” the authors ask. Creating a secondary market in freely tradable procedural entitlements allows parties to realize some of the value of their claims or defenses even when they lose. Under Federal Rule of Civil Procedure 30(a)(2)(A)(i), every party is entitled to take ten depositions; if I need an extra five depositions, why can’t I buy them from a litigant in another case, who intends to use only five of the allotted ten? Under Federal Rule of Appellate Procedure 32(a)(7)(B)(i), a principal brief may contain no more than 13,000 words; if I need an extra 5,000 words to make my argument on appeal, why can’t I get them from a vendor who has bought up the word allotments from parties who are more parsimonious with language than I am?
The authors suggest two principal ways through which a market in freely tradable procedural opportunities might be created. The first is a cap-and-trade system, akin to pollution-control regimes, in which a central decision-maker (Congress? The Supreme Court? The Administrative Office of U.S. Courts?) sets a cap on the amount of procedural entitlement available for purchase, then allows the entitlement holders to reap the value of the entitlement by selling it to others. The second is a government auction, akin to the government’s allocation of broadband spectrum, in which the government sells entitlements either to litigants or to vendors with whom litigants can then deal. The authors propose that the realized funds from the second approach be dedicated to improving the justice system and providing legal services to the underrepresented.
Framing the “procedure as contract” debate along these three dimensions — “which procedures,” “which cases,” and “which type of flexibility” — raises numerous implementation difficulties that the authors seek to address. On the second question (“which cases”), the authors state — somewhat controversially in my judgment — that ninety-nine percent of all cases are “routine,” and thus subject to broad-based negotiation about the shape of the procedural forms that will resolve the claims and defenses. They admit that a judge may need to determine whether a lawsuit is routine early in the case, and that the judge might be wrong. But they argue that default rules (for instance, class actions and multidistrict litigation proceedings are never routine) and other markers (for instance, the appearance of intervenors or amici make the case not routine) will provide reliable guides in most instances.
The authors spend more time sorting out theoretical and implemental issues for the headline-grabbing third question (“which type of flexibility”). They recognize that a cap-and-trade approach creates problems. Setting the cap at the right level is one issue: how many depositions and how many words, in total, should the civil-justice system countenance? Providing the entitlement to the right people is another. If entitlements are allocated on the basis of party status, the system creates an incentive for people to flood the courts with lawsuits whose sole purpose is to market litigation rights. But other methods of distributing entitlements, such as giving each citizen an annual or lifetime allotment of depositions, seem impractical.
The authors find the auction method more promising, although the intervention of major players — think private-equity firms that snarf up all the depositions for the year — may be an unappealing prospect for some. But the authors argue that these proposals will be allocatively efficient and will reduce the negative externalities associated with litigation, just as cap-and-trade systems have markedly decreased the externalities from pollution. As a distributional matter, permitting procedural trading will not favor the rich any more than the present system, in which litigants already get only as much justice as they can afford to purchase. Of course, cap-and-trade or auction markets in procedural entitlements are subject to the charge that they commodify justice, to which the authors respond: That’s right, and if you can’t abide that fact, then these proposals are not for you. But the authors do not close on a take-it-or-leave-it note. They show how market mechanisms may enhance (or least not retard) the quality of dispute resolution, aid in norm creation, and enhance democracy. In short, there is something to like about this proposal even if you hold a normative rather than economic perspective on procedural rights.
I was fortunate to obtain a very preliminary draft of this paper, and I recognize that the authors’ thoughts may evolve as they work through the details of their proposals. Some of their claims about the scope or operation of procedural rules are broad and lack the nuance that later footnotes will presumably provide. But quibbles about the description of present doctrine are beside the point in an article whose goal — successfully accomplished, in my judgment — is to get all of us to think outside of the usual boxes in the procedure-as-contract debate. Its creative genius is to show procedural entitlements in an entirely new light — not as transaction costs sullenly tolerated only to the extent that they cut error costs at the margin by improving accuracy, but also as a source of positive value for those who hold procedural entitlements.
The exact relationship among the three modes of flexibility is unclear in the present draft. The authors do not state definitively whether a market in procedural rights should exist only in “routine” cases in which party bargaining over procedural form has the greatest latitude. Assuming a functional market in procedural entitlements, is there any reason why parties in a complex and socially important class action should get only the entitlements that the judge permits, while parties in routine litigation can purchase greater quantities of entitlements? The authors do not discuss how a market in entitlements fits with a large unchangeable core of entitlements in non-routine cases, nor the exact content of the core in routine and non-routine cases. It is hard to see how robust this market in entitlements will be, at least in the cases that matter.
The authors show some sensitivity to the ways in which the exercise of procedural rights can harm third persons and seem to accept tacitly the premise that the scope and extent of procedural opportunities can affect the outcomes that parties can expect. Whether in this paper or another, they must better sort out whether a market in entitlements might help well-financed parties engage in scorched-earth tactics to avoid liability. At one point they suggest that if a party buys 10,000 more words for itself, it might be required to purchase the same number for its opponent. But it remains unclear whether there should be a more general hold-harmless rule to prevent the imposition of costs on opposing parties and third persons.
The effect of this system on the litigants also deserves further reflection. In some cases, the ability to purchase additional procedural opportunities might enhance agency costs, whether they arise from an hourly-fee lawyer seeking to squeeze out more fees from the lawsuit or a contingency-fee lawyer fronting the purchase price and settling the case on the cheap to ensure recovery of the additional cost.
The choice of method to market procedural entitlements also presents an important distributional question for which there is no definite answer. Cap-and-trade gives the value of the entitlements to their holders (whether they be the parties or the citizenry as a whole). Auction gives the value to the government, which created the entitlements in the first instance. Unless the bidders at auction are limited to present litigants, however, it is likely that a sizable chunk of that value will fall to highly capitalized jobbers who will buy up the entitlements and then sell them off at a profit.
Commodifying procedural entitlements also might have a disheartening side effect: skewing procedural reform. In some instances, commodification will make reform harder, because those who hold present entitlements have an incentive to oppose substantial reform. Say, for instance, a cheap and harmless truth serum threatens to make depositions conducted by lawyers obsolete. Holders of deposition entitlements would have a strong reason to oppose the switch to the serum. (Granted, there might be other reasons to oppose the use of truth serums, but we can already imagine the slick advertising campaigns that entitlement-holding hedge funds will run to exploit those reasons and scare people into opposing reform.) In other ways, commodification might spur useless reform, as people seeking to profit from new forms of entitlements that add little social value to judicial decision-making lobby to enact these forms.
Many of the concerns that the authors and I have identified are trained specifically on the third question of appropriate types of procedural flexibility and the authors’ answer of markets in procedure. The authors acknowledge that their proposal is “to say the least … implausible, and in any event well outside the realm of existing law.” In the rush to talk about markets in procedure that this paper will likely generate, it is important to bear in mind the broader frame of procedural flexibility within which this proposal arose. The authors’ second point — that the breadth of the parties’ right to negotiate procedural forms should depend on the nature of the case — is an insight whose significance does not hinge on the merits of establishing a secondary market in procedural entitlements.
The third question is valuable even if a market-based solution is impractical. Establishing markets in procedure is a logical endpoint of permitting parties to negotiate over the procedural forms to resolve disputes. If creating such markets seems a bridge too far, then perhaps the entire movement toward contract-based procedure is fundamentally flawed. If so, that realization is only a first step. The litigation system operates in a competitive environment. If potential litigants are voting with their feet by moving away from judicially provided procedure toward party-agreed procedure, the litigation system must reform or die.
Given the practical impediments, markets in procedure may not prove the way to reinvigorate the litigation system in the marketplace of dispute resolution. But out-of-the-box creativity, what Avraham, Hubbard, and Lipschits offer here, is needed if a solution is to be found.