While market-based approaches to court procedures—particularly in civil cases—are often perceived as hindering access to justice, American Bar Foundation Research Professor and Deputy Dean and the Clifton R. Musser Professor of Law and Economics at the University of Chicago Professor William H. J. Hubbard poses a different question: Are there ways market forces can be used to make civil justice systems work more fairly and efficiently? With his extensive background studying both economic markets and the legal system, Hubbard is uniquely positioned to translate this question into practicable, evidence-based solutions.
In a recent interview with the ABF, Hubbard explains that the accumulation of civil procedural rules over nearly one hundred years—while often well-intentioned to safeguard fairness and due process—has produced unintended consequences. As rules proliferated, so too have costs, delays, and the strategic complexity of litigation. These burdens also fall disproportionately on litigants with limited resources, who may be unable to navigate dense procedural landscapes. As a result, procedural rules intended to safeguard fairness may instead deepen inequality within the legal system—a phenomenon Hubbard and Ronen Avraham call the “paradox of procedure.” Together, they convened the summer 2025 Conference on New Directions for Civil Procedure, with a focus on how markets and new technologies could play a role in making civil procedure more equitable and accessible. They are also coauthors of a forthcoming book on the same topic.
Among the solutions Hubbard discusses are market-based tools that courts could adopt to alleviate procedural burden. He points to ideas like “lightning lanes,” in which litigants could pay a fee to expedite their case, or “congestion pricing,” where litigants with more complex procedural needs would be required to pay an additional fee. Both of these approaches are based on models with real-world analogues, such as expedited access at theme parks and congestion pricing in urban traffic systems, that have been shown to improve efficiency and outcomes for a broad range of users. In the context of civil courts, such approaches could also generate revenue for overburdened systems, potentially supporting other access to justice interventions like Civil Gideon initiatives or other programs designed to expand legal assistance for underserved litigants.
While some might argue that market forces have no place in the courtroom, Hubbard points out that they are already at work, often in ways that are difficult to see. Rather than assuming they can be fully eliminated, he argues that courts should make these dynamics more transparent and proactively regulate them to serve the public good, instead of allowing them to operate in unregulated and potentially inequitable ways.
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The American Bar Foundation (ABF) is the world’s leading research institute for the empirical and interdisciplinary study of law. The ABF seeks to expand knowledge and advance justice through innovative, interdisciplinary, and rigorous empirical research on law, legal processes, and legal institutions. To further this mission the ABF will produce timely, cutting-edge research of the highest quality to inform and guide the legal profession, the academy, and society in the United States and internationally. The ABF’s primary funding is provided by the American Bar Endowment and the Fellows of The American Bar Foundation.