The American Advantage: The Value of Inefficient Litigation

In a recent article, The German Advantage in Civil Procedure,1 Professor John Langbein claims that the German system of civil litigation is superior to the American; in an earlier article he makes a parallel claim about German criminal procedure.2 Roughly, Professor Langbein argues that by comparison to the German process, American litigation is overly complex, expensive, slow, and unpredictable - in short, inefficient.3 Professor Langbein is not the first and will not be the last to criticize American legal institutions in these terms, but he expresses this criticism particularly well: he is concise and concrete, he describes American practice by reference to a specific and important foil, and he has a clear and articulate point of view. Professor Langbein is also quite convincing; some may disagree but I, for one, have no basis to dispute his claims, and no impulse to try. The point of this paper is different: to question the assumption that efficiency in adjudication is a virtue. This seems, at first blush, an odd argument: not merely that efficiency is a goal that must at times be compromised to accommodate other goals, but rather that in some contexts efficiency (as commonly measured) may be incompatible with other values, and that for some purposes inefficiency may be desirable in itself. Perhaps this strange position deserves a more committed advocate. I advance a number of arguments against efficiency in litigation, but I am not entirely convinced by them; I only neglect the opposing arguments because they are more obvious and better stated by others. My point is more modest: that efficiency is a poor measure of the quality of a procedural system, one way or the other. The structure of this article is simple. I begin with a short (and perhaps somewhat idealized) description of the comparative advantages of the German system of litigation, drawing heavily on Langbein\u27s work, and in that context explain what I mean when I say that the American system is inefficient. I then turn briefly to various defenses of our system, and distinguish them from the present line of argument. Last, and most important, I offer a number of reasons to doubt the value of efficiency in a legal system, and to favor inefficient procedures instead