Our civil justice institutions are about 100 years old, dating back to the progressive era and the adoption of the Federal Rules of Civil Procedure. But the world has changed a lot since then. In particular, the number of transactions in society has exploded, as population growth, economic growth, and technological change have exponentially increased the activity in society that leads to disputes. Separately, alongside the rise in civil disputes, the cost of the time and attention of legally trained experts has skyrocketed, rising faster than inflation for generations.
Our civil justice institutions are caught between these two forces. There are more disputes to resolve, but the cost to resolve each of them has gone up significantly. Meanwhile, courts’ tools for managing cost and scale, such as the class action, are powerful in only limited domains, leaving a growing number of disputes without redress. The result is that we are collectively paying much more for civil justice, but still getting widespread bad outcomes.
This article identifies and documents these two sweeping trends in cost and volume. It then discusses several implications for civil justice reform. Notably, long-term increases in cost suggest changes to the constitutional mandates of due process, which is doctrinally structured as a balancing of benefits and costs. The article argues that the increased flexibility facilitated by this understanding of due process should be used to experiment with new approaches to volume. It concludes with suggestions for a new “liberal ethos” aimed for resolving civil disputes at scale.
