Finally read @DoubleAspect's piece on the costs of PF in admin law, and need to reflect on the marginal benefit of more extensive procedures vis-à-vis the marginal cost. It's very good, and allows a chance to follow up on thoughts re: Abella J's recent op-ed. /1 https://twitter.com/DoubleAspect/status/1253429537146171392

A major question re procedure (not the only one) is trying to lead the decision-maker to a more accurate result, and the perception thereof. This is common to admin law and civ pro (my two favourite subjects). /2

As  @DoubleAspect notes, citing  @JeremyJWaldron, fair process furthers human dignity, in addition to the likelihood of an accurate result. This is no small matter. /3

But it is entirely possible for extensive process to only marginally further the likelihood of accurate decision-making, or the parties' perceptions of being treated fairly, while also causing enormous expense and delay. This too is common to civ pro and amin. /4

More challenging is when the more extensive procedure is prohibitively expensive for 90% of society, but seriously increases the likelihood of a just result. This is difficult, and I'll set to the side for now. /5

As I read Abella J (charitably, maybe op-ed wasn't model of clarity), she is asking the civil justice system to critically ask whether particular processes actually further likelihood of a just result/the perception thereof. /6

The courts have a constitutional role not shared with admin tribunals, so maybe we want to put our finger especially on the scale of "perception of fairness" re: procedures in courts when compared to admin actors. /7

Extensive process may not be (very) helpful. Almost everyone agrees documentary discovery in North America has gotten out of hand, but lawyers are disincentivized to change that, for financial reasons and for .001% chance that the extensive discovery could actually help. /8

I would also posit motions to strike/request for rulings on questions of law are under-utilized to resolve matters (either explicitly or by leading to settlement) and develop the common law. /9

These are just a few examples. Procedure cannot be jettisoned -- it is essential. But a 19th century English trial isn't the only way for it to be fair, and we should recognize that there are trade-offs, as @DoubleAspect reminds us. /10

My doctoral advisor once told me of an arbitrator who advertised, "Speed, Quality, Affordability. Pick any two." There's something to that. One chooses to go to an arbitrator in a way one doesn't choose to go to court. But let's not pretend that these values never conflict. /end