ABSTRACT
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 benefits and minimize the costs 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 …
Shapiro, Matthew A, Procedural Wrongdoing (2022). Brigham Young University Law Review, forthcoming, Rutgers Law School Research Paper 2022.
First posted 2022-04-25 09:00:13
Leave a Reply