Daphna Kapeliuk & Alon Klement, Changing the Litigation Game: An Ex-Ante Perspective on Contractualized Procedures, 91 Tex. L. Rev. 1475 (2013).
Anyone caught up in litigation—whether lawyer or litigant—would situate the recent interest in party rulemaking within the larger debate over the merits of maximizing party choice in dispute resolution. They would focus on setting appropriate limits on the practice of party rulemaking in order to balance the benefits of increased efficiency for the litigants and the public with the risk of abuse and the potential for bringing the administration of justice into disrepute. This perspective on party rulemaking often leads to a further analysis of the value of game theory in illuminating and assessing the range of outcomes that can emerge depending on how party choice is confined.
In their article, Daphna Kapeliuk and Alon Klement (members of the Radzyner School of Law, Interdisciplinary Center, Herzliya) engage with the leading U.S. commentators in this area, most notably Robert Bone’s Party Rulemaking, Making Procedural Rules Through Party Choice. They take the analysis beyond the interests of litigants and others in the system to show how party rulemaking can have important public implications and can, in effect, ‘change the litigation game’ itself.
Kapeliuk and Klement do this by highlighting a key feature of the analysis that is generally lost in concentrating on the strategic implications of particular choices and their potential to affect the outcome (both the specific result and the efficacy of the process). This key feature is the timing of the party-rulemaking—whether it is ex ante or ex post the emergence of the dispute. As they explain, changing the rules once a dispute has arisen may not really be much more than a function of party prosecution within the adversary system itself. This remains the case whether the party making the rules chooses among ordinarily available options or selects a procedure beyond the possibilities that are ordinarily available, thereby changing the rule. In any event, parties are less likely to cooperate to change the rules after a dispute has arisen, because in the adversary system, such a change will rarely be seen as in their mutual interests.
Changing the rules in advance of the emergence of a dispute is different. It may not be obvious to courts how ex ante, rather than ex post, party rulemaking affects the outcome of the dispute and the process by which it is reached. This does not mean that it should be ignored, however. As the authors explain:
When evaluating the impact of a pre-dispute procedural commitment on institutional values such as judicial integrity and legitimacy, courts should be aware that the outcome they observe is only one of many possible contingencies that could have materialized. The modified rule has transformed the parties’ relationship from the time they had agreed on it. It has affected their behavior in performing their contractual obligations, the probability that a dispute would arise, and their litigation behavior. All these effects have public implications that go beyond the parties and that have to be considered when enforcement of the parties’ agreement is at stake. Focusing on one contingency that has materialized misses the full range of public implications.
Perhaps more significantly, the changes to the rules that parties agree upon ex ante can be evaluated more readily in contractual terms for their implications for the traditional procedural values that underlie our civil justice system. Are these choices so unbalanced as to raise concerns about the relative bargaining powers of the parties? Are they so ill-conceived as to offend fundamental tenets of our legal system? What do they say about the way our courts are functioning and whether they are meeting the needs of the public?
It is true that Kapeliuk and Klement are not the first to observe the differential benefits of party rulemaking for the parties and for the public that can arise in certain disputes. Party rulemaking can, for example, deprive the public of useful precedents or interfere with the courts’ ability to support fundamental social policies. By emphasizing the need to consider the timing of party rulemaking, Kapeliuk and Klement underscore how party rulemaking can have a transformative effect on civil litigation, and the way it supports or undermines the incentives to perform contracts and shapes the parties’ responses to potential disputes.
In this sense, Kapeliuk and Klement show not only how ex ante contracting for disputes can change the litigation game, but also how, in view of its transformative potential on the role of courts, it ought to be taken seriously—as more than a game. Well worth reading—well played!