The Purpose of Civil Procedure

Abstract

Civil procedure should be "just, speedy, and inexpensive," according to the purposive rules found at the outset of many procedural codes. However, this formula creates as many questions as it answers. What does it mean for procedure to be "just?" What sorts of costs are relevant when considering how "inexpensive" procedure is? How should rule-makers and adjudicators compromise between justice, speediness, and inexpensiveness when these goals are in tension and resources are scarce? This article offers a normative account of civil procedure's purpose. The goal is to identify the warrant for"just, speedy, and inexpensive," and then to explain and refine it. I argue that welfarism, a general normative theory of public policy, is implicit in modern civil procedure. Welfarism is the idea that public policy decisions should always seek to optimize welfare for all affected individuals. I defend welfarism as a theoretical basis for reforming civil procedure and resolving its hard cases, and propose three refinements to civil procedure's purposive rules to give better effect to it.