Toward Procedural Optionality: Private Ordering of Public Adjudication
Robert J. Rhee
Private resolution and public adjudication of disputes are commonly seen as discrete, antipodal processes. The essence of private dispute resolution is that the parties can arrange the disputed rights and entitlements per agreement and without judicial intervention. In public adjudication, however, the sovereign mandates the substantive and procedural laws to be applied, many of which cannot be changed by either a party’s unilateral decision or both parties’ mutual consent. Neither approach allows a party an option to unilaterally alter important aspects of the process, such as the attorney fee rules and standards of proof. This understanding is commonly accepted and rarely challenged, but it is curious nonetheless.
This Article proposes that we move toward procedural optionality, the idea that each party should have options to choose certain procedural laws in public adjudication. To show the potential efficacy of this concept, this Article proposes a scheme in which parties can unilaterally shift fees as long as they contractually bond their good faith by assuming a higher standard of proof. Allowing private choice to alter these rules can better address the problems of frivolous suits and nonprosecution of low value claims—two problematic bookends in the spectrum of litigation. By properly structuring party options, the law can create greater convergence of private incentives and social interest. More efficient dispute resolution results, as measured by increased enforcement of and compliance with the substantive laws, at lower cost. Lastly, this Article concludes by examining more broadly some policy implications of procedural optionality for substantive and procedural laws.