Just Costs

Abstract

This chapter considers the normative foundations of the law of costs, proposing a structure for analysis. Despite the central importance of the expense of justice to the practice of law, the law of costs is rarely a topic of theoretical inquiry. This chapter begins with a distinction between individualist and holist theories, suggesting that ‘loser pays’ rules are usually thought justified on individualist terms. This, the chapter argues, is a mistake; the law of costs is justified, if justified, by a holistic theory. So understood, the law of costs is part of the system by which the law controls access to and the distribution of its own resources. If that is correct, the law of costs is justified only if the distributive arrangement is justified. Civil procedure can only be done well, this suggests, if linked to broader theories of distributive justice.