Social Justice and the Structure of the Litigation System

Substantive rights are meaningless if they cannot be enforced. Access to justice is thus at the heart of any legal system. If access to justice is effectively denied, the legal system becomes an empty vessel. Regrettably, most people are currently denied effective access to the litigation system. Litigation is costly, and individual litigants encounter high barriers in their attempts to vindicate their rights. They often face repeat players – powerful corporate litigants who frequent the court system and enjoy economies of scale in litigation. Growing wealth gaps mean that individual litigants face extremely unfavorable odds in litigation, and simply cannot afford to assert their rights. For members of vulnerable and marginalized social groups, these problems are especially acute. Social justice requires equal and effective access to the litigation system, regardless of race or socio-economic status. Without such equal access, the litigation system is not a system of justice, but a tool of oppression: large corporations and well-off parties can use the litigation system to abuse poorer individuals, knowing that these members of society will not be able to afford vindication.<br>This Article develops a novel regime that secures equal access to the litigation system, through two rules that govern litigation costs. First, we suggest allowing one-time litigants to set a cap on the overall investment in litigation when they face professional, repeat litigants. Second, we suggest allowing individual litigants to set a cap on the amount the vindicated party will be reimbursed for when trial is over. These two caps assure equal and effective access to the litigation system, satisfying the fundamental requirements of social justice. We show that these rules are not unfair to well-off parties. They assure that all parties will always be able to litigate if their cases have merit, and that their rights will always be fully protected if they win. We discuss the implementation of this regime in practice, and illustrate the justifications for this method with reference to social and distributive justice, efficiency, and the broader goals of the litigation system.