99. Roshana Ching. Civil Litigation: Too Much, Too Little, or Just Right?

Simultaneously, there is talk among the legal community of the need for efforts and procedures to encourage as well as to limit the use of the legal system. Yet there is little discussion in legal literature as to where the socially desirable level of litigation falls. As litigation comes at significant public cost, it is important that resources are allocated to cases so as to enhance social value. However, a crucial misalignment between the private and social incentives to use the legal system frequently results in instances of both excessive and inadequate litigation. This divergence of interests is often overlooked by legal commentators, practitioners, judges and policy makers. It is brought to light in this paper by the first sustained analysis of specific case studies illustrating the divergence between private and social incentives to litigate. Only when this issue is properly understood can rules and regulations governing civil litigation be suitably informed.

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