The Narrative of Costs, the Cost of Narrative

Authors

Alexander A. Reinert, Benjamin N. Cardozo School of LawFollow

Abstract

In this Article, I will highlight some of my concerns, but they boil down to this: in terms of diagnosis, I am simply not convinced that Judge Marrero has compellingly demonstrated that in the run of cases, our procedural rules are being abused in ways that undermine justice and increase cost and inefficiencies. In part, this is a data-driven critique-there is little empirical support for the proposition that our procedural system is too costly in most cases. But my critique is also an attitudinal one. Judge Marrero makes much of the extent to which litigants fail-claims that are dismissed, motions that are lost, etc.-and finds in these instances proof of unnecessary cost and rampant inefficiency. But Judge Marrero's assessment, I fear, overlooks fundamental values that are advanced even when litigants seek legal relief and are ultimately unsuccessful. Even if one accepts Judge Marrero's diagnosis, some of his prescriptions will create their own inefficiencies, and sometimes undermine justice, in ways that Judge Marrero does not sufficiently address.

Disciplines

Dispute Resolution and Arbitration | Law | Legal Profession | National Security Law

Recommended Citation

Alexander A. Reinert, The Narrative of Costs, the Cost of Narrative, 40 Cardozo L. Rev. 121 (2018).
Available at: https://larc.cardozo.yu.edu/clr/vol40/iss1/5