Center on Corporate Governance
Center for Contract and Economic Organization
Just as war is too important to be left to generals, civil procedure – with apologies to Clemenceau – is too important to be left to proceduralists. Although it would be a serious overstatement to claim that all civil procedure scholars are confined by a tunnel vision focused only on the Federal Rules of Civil Procedure, they have as a group been reluctant to engage explicitly in incentive-based reasoning and seem particularly hesitant to reexamine what they must know to be a noble myth: namely, that the client can and should control all litigation decisions. Within an important and expanding context – one that this article will call that of "entrepreneurial litigation" – this assumption of client control simply does not hold. Instead, the relationship of attorneys to clients within this domain presents a classic illustration of market failure: here, the market for legal services. Much of this article will focus on the various causes of this market failure – that is, high information costs, adverse selection and common pool problems, as well as the legal rules that aggravate these problems – but the more important question involves how the law should respond to the fact of market failure. Clearly, when markets fail, the law must regulate. But how should the law regulate? What goals should be given priority? These are not simple questions, and their difficulty may explain the stubborn devotion of many proceduralists to the ideal of individual client control. Even a failed and quixotic model may offer more hope than an intellectual void, and few have offered clear conceptual alternatives to the ideal of client control.
John C. Coffee Jr.,
The Regulation of Entrepreneurial Litigation: Balancing Fairness and Efficiency in the Large Class Action,
U. Chi. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/531