Review of Chapter 8 of Rule of Law: civil disputes

Since 20 January (see here), I have reviewed in fits and starts the first half of Rule of Law by Tom Bingham (Chs. 1 to 7). This weekend, I will try to bring this project to a close by reviewing the rest of the book, starting with Chapter 8, which is on dispute resolution. In brief, Bingham begins this chapter thus: “Means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes [that] the parties themselves are unable to resolve.” Without prohibitive cost or inordinate delay, he says? Very funny! [Insert your favorite “LOL emoji” here.]

To his credit, after a quick detour through mediation and arbitration (i.e. dispute resolution methods that are used to avoid or opt-out of the formal court system), Judge Bingham quickly concedes that civil litigation is an extremely expensive and time-consuming process. Alas, what Bingham doesn’t do, however, is point out the positive correlation or direct link between both phenoms: the growing use of such alternate methods of dispute resolution as mediation and arbitration on the one hand and the drawn-out and costly nature of civil litigation on the other.

Worse yet, Bingham’s shallow analysis of civil litigation is radically incomplete, marred by an important omission: the fact that civil litigation is not only a costly and time-consuming affair; it can also be a super-risky one. That is, cost and delay are not the whole civil-litigation story. The other key problem with going to court is the variable of uncertainty. Simply put, whenever a case goes all the way to trial, it is next to impossible to predict with any degree of certainty what the outcome of that case will be. As a result, even when the parties have all the time and money in the world to fight their battles in court, they may not want to take their chances with a judge or jury.

(If you want a more accurate picture of the civil litigation process, check out this textbook chapter I wrote in 2014, which explores the interplay between cost and uncertainty, or my 5 April 2014 blog post on “Litigation and the game of poker” or my 10 June 2020 blog post “Settle or go to trial?“, both of which survey the strategic aspects of litigation more generally.)

Back to Bingham though. Maybe Bingham is totally wrong about the relationship between civil litigation and rule of law. Maybe the rule of law does not require a court system that can resolve disputes quickly and cheaply as along as private courts (arbitration) or informal procedures (mediation) can do the job.

About F. E. Guerra-Pujol

When I’m not blogging, I am a business law professor at the University of Central Florida.
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