Private Law Theory

ABSTRACT
Our litigation system is broken. Scholars have long warned that professional litigants such as debt-collecting firms, insurance companies, and commercial landlords enjoy immense and unfair advantages over private individuals. What has gone unnoticed is professional litigants’ ability to manipulate their litigatory position, ie, to choose whether they will litigate as plaintiffs or defendants. Extant literature assumes that the parties’ litigatory positions are determined by the substance of the dispute: the party seeking a remedy is the plaintiff, and the party objecting to the award of a remedy is the defendant. We show that in reality professional litigants have both the incentive and the ability to switch between positions at will, assuming whichever litigatory role best serves their interests under given circumstances. In reality, professional litigants choose which side of the “v” they prefer to be on. Professional litigants’ ability to choose their litigatory position offers them immense advantages. It allows professional litigants to reshape litigatory interactions, secure easy victories against private individuals, and hinder the fair and equal adjudication of disputes.

Based on this observation, this Article makes three novel and important contributions. First, it reconceptualizes our understanding of the litigatory landscape. The Article challenges the existing understanding of the litigation system by deconstructing the traditional plaintiff-defendant dichotomy and highlighting the malleability of the litigatory setting. Second, it draws attention to the implications of professional litigants’ manipulation tactics. Finally, it proposes legal reforms designed to balance the scales and update the institutions of litigation to the current reality, in which most legal disputes occur between private individuals on one side and professional adversaries on the other.

Kaplan, Yotam and Paldor, Ittai, Choosing Sides: On the Manipulation of Civil Litigation (September 18, 2023), Vanderbilt Law Review, Forthcoming.