The Clash of Procedural Values
Should civil litigation be fast, inexpensive or accurate? When these goals clash, which one should prevail? These questions are the subject of countless court opinions, policy arguments, academic debates, and civil procedure exams. Yet discussion of procedural values to date has taken place in the dark, lacking vital information about which procedural values matter to actual litigants.
This Article fills that void with empirical analysis. It analyzes an original dataset based on 1200 surveys mailed to a broad range of litigants and judges asking for their views on procedural values. It interprets survey responses by introducing to legal scholarship a novel combination of methodological tools: multi-dimensional scaling and circular regressions.
The analysis reveals a consensus among surveyed groups for not valuing highly speed, cost, and privacy. This consensus cuts against the prevailing wisdom in policy-making circles, court opinions, and academic literature.
Beyond this consensus, this Article also reveals significant conflict between groups over which of the remaining procedural values are most important. Federal judges prioritize fairness and participation. Large corporations value accuracy and finality. Pro se litigants stress the importance of accessibility and simplicity.
These findings raise pressing concerns: whenever we favor one procedural value over another, we favor some litigants over others. Conflict over prioritizing procedural values is, ultimately, conflict about prioritizing litigants themselves.
Roger Michalski, The Clash of Procedural Values, 22 Lewis & Clark L. Rev. 61 (2018).
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