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Civil Justice ReconsideredToward a Less Costly, More Accessible Litigation System$
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Steven P. Croley

Print publication date: 2017

Print ISBN-13: 9781479855001

Published to NYU Press Scholarship Online: January 2018

DOI: 10.18574/nyu/9781479855001.001.0001

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Discouraging Over-Litigation

Discouraging Over-Litigation

(p.159) 8 Discouraging Over-Litigation
Civil Justice Reconsidered

Steven P. Croley

NYU Press

This chapter addresses the distinct problem of over-litigation, defined as pressing a good-faith claim or defense even after it has been shown, through the litigation process, to be weak. This chapter first points out that litigants externalize litigation costs on opposing parties, because a litigant's decision to press a claim or defense will often require additional expenditures by the opposing party. To discourage parties from over-litigating, this chapter introduces the concept of "pay to impose," as opposed to the more familiar "pay to lose" rule for reallocating litigation costs. “Pay to impose” would require judges to use existing rules of civil procedure to reallocate litigation costs on parties who over-litigate, particularly with respect to their marginal litigation decisions. It furthermore explores the idea of “procedural offers” and the limits of zealous advocacy.

Keywords:   pay to lose, pay to impose, marginal litigation decisions, procedural offers, litigation costs, reallocate, civil procedure, zealous advocacy, judges

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