There Is No Such Thing as Litigation: Access to Justice and the Realities of Adjudication

Abstract

Does a "contest by judicial process" describe litigation's "means and applications"? Overwhelmingly, no. Litigation is not about judges: it is about default judgments, settlements, plea bargains. It sometimes does not even involve judges at all. Litigation is not about trials: the amount of litigation that goes to trial is infinitesimal. It is not about "process": the process is so minimal that to dignify it with that term stretches the word beyond recognition. It is not a "contest": it is an exercise where one side has no plausible chance of winning, especially since that side either has no lawyers or lawyers with overwhelming caseloads to enforce whatever written rules do exist.

Keywords: litigation, access to justice, judges, default judgments, settlements, plea bargains, trials, process, contest, exercise, overwhelming caseloads, rules, attorneys, lawyers

JEL Classification: K10, K19, K29, K39, K41, K49