BYU Law Review


Both the practice and the study of civil justice are rife with accusations of litigation “abuse.” Although it’s tempting to dismiss all this abuse talk as merely rhetorical, the concept of abuse in fact has deep roots in the normative structure of civil procedure’s doctrinal apparatus for regulating parties’ wrongful litigation conduct — their procedural wrongdoing. Prior accounts of procedural wrongdoing have maintained that parties abuse the civil justice system whenever they violate a procedural rule that’s calibrated to maximize the net benefits of litigation. Such accounts, however, ignore the many rules that define procedural wrongdoing not in terms of the effects of litigation conduct, but rather in terms of parties’ motivations, forbidding parties to act with certain motives or for certain purposes. According to these rules, which this Article labels motivation-sensitive restrictions, the very same litigation conduct can either constitute procedural wrongdoing or not, depending on a party’s motivations for engaging in it.

This Article provides a comprehensive analytical account of civil procedure’s motivation-sensitive restrictions. In doing so, it contends that the restrictions have ambiguous normative consequences for civil justice. On the one hand, the restrictions can foster a thin but nevertheless valuable form of procedural civic virtue, prodding parties to attend to important public values even as they pursue their own private ends through the civil justice system. On the other hand, precisely because they focus on parties’ subjective purposes, the motivation-sensitive restrictions risk inflaming public discourse about civil justice by inviting participants in policy debates to transmute their disagreements into moralized accusations of abuse or bad faith. We can try to mitigate these latter, discursive effects by emphasizing the relatively modest demands imposed by the motivation-sensitive restrictions — the fact that such rules require parties only to abjure certain illicit purposes rather than to become primarily public-regarding in their litigation behavior.

This Article’s account of civil procedure’s motivation-sensitive restrictions also sheds new light on leading theories of civil justice, which have largely glossed over the doctrinal infrastructure for addressing procedural wrongdoing. In contrast to the “private enforcement” model espoused by most civil procedure scholars, the motivation-sensitive restrictions (modestly) limit the purposes parties may pursue through civil litigation but make no systematic attempt to ensure that parties promote rather than subvert governmental regulatory policy, belying common portrayals of plaintiffs as stand-ins for the state — “private attorneys general.” But the restrictions also expose an underappreciated public dimension of prominent theories of private law, insofar as they curb party autonomy by requiring parties to attend directly to public values when taking certain actions during civil litigation. Considered in light of civil procedure’s motivation-sensitive restrictions, the civil justice system proves to be both more private and more public than how it’s generally understood.


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