Customized litigation: The case for making civil procedure negotiable

This Article calls for a reconceptualization of the procedural rules governing modem litigation. Specifically, it suggests that litigants ought to be given the opportunity to customize their litigation experience-that procedural rules should be treated as default rules from which parties can mutually negotiate deviations. Although they are not typically labeled as such, modest examples of customization already occur both within the rules of civil procedure and extrajudicially. This Article argues that much greater tailoring is possible, and suggests three criteria for assessing how much deviation from the current baseline is tolerable. A judicial system that presents an opportunity for customized litigation would be more procedurally just, more efficient, and more accessible than one with only a set of nonnegotiable procedural rules.