There is a peculiar dynamic unfolding in American courts that deserves sustained attention from legal observers and the public alike. The system appears to be rewarding litigants and their representatives for aggressive filing strategies, expansive discovery demands, and media-savvy courtroom tactics, while simultaneously punishing restraint, efficiency, and good-faith dispute resolution. This misalignment of incentives is reshaping how justice actually functions.
Consider what happens when a high-profile case lands on a docket. The financial stakes for attorneys multiply immediately. Win or lose, the visibility translates to future business, speaking engagements, consulting opportunities, and book deals. The system rewards the boldest legal positioning, the most dramatic filings, and the strategies most likely to generate headlines. Meanwhile, the judge managing the calendar faces pressure to move cases through the system, often by accommodating the very tactics that extend proceedings and inflate costs for everyone else involved.
This is not a novel observation, but its implications are worth examining more closely. The incentive structure creates a perverse outcome: the least efficient path through litigation can be the most individually rewarding one. A lawyer knows that settling quietly generates no publicity, produces no precedent that burnishes a resume, and creates no platform for future prominence. But a lawyer who files motions that generate coverage, makes bold legal arguments that journalists find compelling, and stages dramatic courtroom moments builds a brand.
The problem extends beyond individual practitioners. Courts themselves can become caught in this dynamic. A judge who presides over a case with genuine First Amendment stakes, or a case involving sympathetic parties or novel legal theories, may receive disproportionate media attention and professional recognition. The incentive to expand the scope of proceedings, to issue expansive rulings, or to allow more discovery than strictly necessary can be subtle but real. Nobody consciously thinks: "I will abuse my authority for attention." But the human tendency to find satisfaction in meaningful work, professional esteem, and recognition operates quietly in the background.
The damage manifests in several ways. Court dockets become congested because cases that might be efficiently resolved are instead extended through aggressive positioning. Litigation costs balloon for parties who cannot afford to match the scorched-earth tactics of well-funded opponents. Access to justice, paradoxically, becomes worse for ordinary people even as the system appears more open. A person of modest means cannot sustain the financial burden of matching a sophisticated legal team's filing volume and discovery demands, no matter how meritorious their case.
There is also a distortion in substantive law development. The cases that reach appellate courts and generate precedent are increasingly those where parties had the resources to litigate aggressively, not necessarily those presenting the most important legal questions. Over time, jurisprudence becomes shaped by cases that were strategically significant to well-funded litigants rather than cases that most effectively clarified legal principles for society's benefit.
This does not require assuming corruption or bad faith. It requires recognizing that institutional incentives have subtle but powerful effects on behavior. When visibility, professional advancement, and financial reward cluster around aggressive litigation tactics, we should expect more aggressive litigation. When settling quietly generates no recognition, settlement rates decline.
The question for legal observers is straightforward: Are we comfortable with a court system where the incentives reward the tactics that make justice slower, more expensive, and less accessible? Are we satisfied that our jurisprudence reflects the strategic interests of the best-funded litigants rather than the most compelling legal questions?
We should not be.