TRANSACTIONALISM COSTS

• Published in: Virginia law review Vol. 100; no. 6; pp. 1211 - 1278
• Main Author: Trammell, Alan M.
• Format: Journal Article
• Language: English
• Published: Charlottesville VIRGINIA LAW REVIEW ASSOCIATION 01.10.2014; The Virginia Law Review Association
• Subjects: Actions and defenses (Administrative law); Attitudes; Claims; COSTS; Counterclaims; Defendants; Flexibility; Injuries; Judges; Jurisdiction; Law schools; Law students; Lawsuits; Lawyers; LEGAL PROFESSION; Legal research; LITIGATION; Plaintiffs; Provenance trials; State court decisions; Transaction costs; Transactionalism; Trials; Workshops; UNITED STATES
• ISSN: 0042-6601; 1942-9967

Modern civil litigation is organized around the "transaction or occurrence," a simple and fluid concept that brings together logically related claims in one lawsuit. It was a brilliant innovation a century ago, but its time has passed. Two inherent defects always lurked within transactionalism, but modern litigation realities have exacerbated them. First, transactionalism represents a crude estimate about the most efficient structure of a lawsuit. Often that estimate turns out to be wrong. Second, the goals of transactionalism are in tension. To function properly, the transactional approach must be simultaneously flexible (when structuring a lawsuit at the beginning of litigation) and predictable (when enforcing preclusion doctrine on the back end of litigation). But frequently it is neither.
Modern civil litigation is organized around the “transaction or occurrence,” a simple and fluid concept that brings together logically related claims in one lawsuit. It was a brilliant innovation a century ago, but its time has passed. Two inherent defects always lurked within transactionalism, but modern litigation realities have exacerbated them. First, transactionalism represents a crude estimate about the most efficient structure of a lawsuit. Often that estimate turns out to be wrong. Second, the goals of transactionalism are in tension. To function properly, the transactional approach must be simultaneously flexible (when structuring a lawsuit at the beginning of litigation) and predictable (when enforcing preclusion doctrine on the back end of litigation). But frequently it is neither.