Courts and legislatures often conflate merit-less and frivolous cases when balancing the desire to keep courthouse doors open to novel or unlikely claims against the concern that entertaining ultimately unsuccessful litigation will prove too costly for courts and defendants. Recently, significant procedural and substantive barriers to civil litigation have been informed by judicial and legislative assumptions about the costs of entertaining merit-less and frivolous litigation. The prevailing wisdom is that eliminating merit-less and frivolous claims as early in a case’s trajectory as possible will focus scarce resources on the truly meritorious cases, thereby ensuring that available remedies are properly distributed to deserving plaintiffs.
Frivolous and merit-less litigation are not the same, however. Frivolous claims are easier to identify at the outset of litigation because they rest on unrecognizable legal theories or fantastical factual allegations. More importantly, merit-less litigation has a distinct and identifiable value that is obscured by conflating merit-less claims with frivolous ones. Unlike frivolous litigation, merit-less litigation can bring to light facts that may lead to systematic reform (even where no legal cause of action lies), lead to legal innovation by announcing new interpretations of common law and statutory and constitutional texts, and pave the way for future changes in the law. Recognizing the value of merit-less litigation and distinguishing merit-less from frivolous cases therefore raises questions about the recent barriers that have been imposed to civil litigation. Taking the value of merit-less litigation into account is essential if we are to strike the correct balance between the costs and benefits of keeping courthouse doors open.