GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2024

Status

Working

Abstract

Justice isn’t free, but it might soon get much less expensive. Policies concerning issues such as arbitration, class actions, and plea bargaining depend on how much legal services cost, but the legal literature has generally ignored past and future cost trends and their implications. The result is a legal system that may change dramatically because of economic forces without active consideration of potential responses. Part of the reason for the lack of attention is that changes in legal productivity can be difficult to measure or forecast. Some commentators have concluded that the legal sector has become more expensive in recent decades, but they have missed both evidence that advances their case and arguments against it. The advent of AI introduces the possibility that lawyers’ productivity will improve, reducing legal costs and ameliorating concerns about access to justice. The legal system can best prepare by more explicitly recognizing how procedure and doctrine depend on cost, thus smoothing the path for a possible productivity revolution rather than relying entirely on the political system to respond. For example, courts could explicitly incorporate a cost-benefit framework that already is implicit in much summary judgment case law, potentially enabling more cases to be tried to verdict if legal services become cheaper. Similarly, greater honesty that the criminal justice system ratchets up penalties to encourage plea-bargaining might help avoid an outcome in which cost efficiencies allow prosecutors to exact longer prison sentences than legislatures intended.

GW Paper Series

2024-37

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