How to Think About Errors, Costs, and Their Allocation

There is an ongoing, robust debate about the structure of litigation, and in particular, about access to the courts. For a considerable period of time, the mantra that the courts should be readily available to all the people so that people may present claims that their rights have been violated has dominated academic discourse and has, perhaps, significantly influenced the structure of litigation.1 This conventional view—that the courts should be freely open to all—was dealt a blow by the Iqbal2 and Twombly3 decisions, which imposed greater gatekeeping responsibilities on the federal district courts. These decisions predictably provoked a storm of protest, in large measure because they may indeed make it more difficult for many petitioners to have their petitions considered on the merits.4 But whether that result is a social harm or a social good depends on matters aside from simply winnowing the field of potential disputants—a point neglected by much of contemporary civil procedure scholarship. That scholarship has placed a laser-like focus on facilitating the bringing of claims, and in doing so, has made two serious errors: first, the scholarship fails to consider that litigation is but one small part of a larger social optimization problem; and second, the scholarship has a peculiar conception of errors and costs, including how to allocate those errors and costs. This brief Article provides the analytical background to these assertions. “Primary behavior” and “litigation behavior” are conventionally thought of as distinct spheres with internal logics of their own. The former articulates rules governing everyday actions—from social interaction to structuring efficient economic behavior—and the latter governs the peculiar set of actions involved in litigation. Facilitating appropriate primary behavior is the overriding goal of social organization, and one of its main tools is substantive law. Litigation behavior is the effort to resolve disputes about inappropriate primary behavior or to reestablis