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15 Nevada Law Journal 882 (2015)


Fairness is a foundational concept in American jurisprudence. Yet when evaluating our system of civil procedure, debate surrounds how to reconcile the competing ends of our civil justice system. While scholars agree that our civil justice system must vindicate rights, deter wrongful conduct, respect human dignity, and enhance social welfare and efficiency, scholars disagree on how best to reconcile these ends. Doubtless, the tension between these plural ends poses difficulty when courts, civil rule designers, and legislators balance and weigh the costs and benefits of different civil procedural rules and constitutional safeguards under the Due Process Clause. Notably, courts face this vexing difficulty when conducting the cost-benefit analysis envisioned by Mathews v. Eldridge under the Due Process Clause, and upon amendment of the Federal Rules of Civil Procedure, federal courts will face this difficulty under newly amended Rule 1.

This difficulty poses several intertwined questions. Is the Mathews v. Eldridge conception of cost-benefit analysis under the Due Process Clause consistent with how the public experiences tradeoffs between procedural justice and cost? Does the public, for example, treat procedural justice as an ordinary monetizable consumer preference, or does the public experience procedural justice as a deeply human, sacred, moral, and dignitary value? In addition, newly amended Rule 1 now affirmatively requires parties to weigh and strike procedural tradeoffs. Yet, a crucial threshold question remains—how do members of the public experience these tradeoffs; how would members of the public, for example, experience tradeoffs between procedural fairness and cost?

Consistent with the themes of the inaugural Conference on Psychology and Lawyering, we draw on psychological science and harness psychological experiments to investigate these questions. First, we examine whether the public is willing to pay to upgrade from procedural unfairness to procedural fairness. Relatedly, we examine the public’s maximum willingness to pay to enhance procedural fairness. Next, we examine whether the public is willing to accept payments to downgrade from fair process to unfair process. Stated another way, is the public willing to monetize and exchange the procedural justice afforded to them? Thus, we examine the public’s minimum willingness to accept the descent from procedural justice to procedural injustice. Last, we examine whether these willingness-to-pay (“WTP”) and willingness-to-accept (“WTA”) values vary with the underlying interests at stake. In this way, and joining in the collective efforts of those who seek to coalesce the field of psychology and lawyering, we illustrate how Law & Psychological Science, a form of naturalized legal inquiry and behavioral realism, that examines legal problems by infusing law with insights from the psychological and behavioral sciences, can be harnessed in the realm of civil procedure and dispute system design to cast new light on vexing problems to benefit courts, procedural regulators, and legal professionals.

The Article proceeds as follows: in part I, the Article offers a theoretical orientation, presenting social-psychological research on procedural justice, taboo tradeoffs, relational theory, and the sacred-value protection model. In part II, the Article reports an experiment conducted with members of the American public, discussing first methods then results. In part III, the Article presents a general discussion regarding the implications of this research on procedural regulation, including implications for the cost-benefit analysis envisioned by Mathews v. Eldridge under the Due Process Clause and concerns raised under newly amended Rule 1, and turns then to civil procedure pedagogy. Last, the Article closes with next steps for this line of research and conclusions.