Litigation saps judicial resources from other areas

P8. We have no quarrel with the point at which the balance between merits (justice) and process (efficiency) intersects in most civil and criminal litigation. In fact, merits may be difficult to determine in the majority of cases simply because we possess no infallible method to determine with certainty historical facts. Fair, not perfect, process is all that is required. United States v. Hasting, 461 U.S. 499, 508-09 (1983) ("no such thing as an error-free, perfect trial, and ... Constitution does not guarantee such a trial"). Indeed, fair process may be an appropriate surrogate for right merits. Judicial resources are finite. If lavished or squandered on one piece of litigation, they are not available for use on another piece of litigation. Thus, justice rendered in one case is justice denied in the other. Nevertheless, we vigorously argue in these materials that litigation itself is not fungible. Some cases are more important than others, not to the litigants, but to the society. Litigation rightly raising free speech or expressive conduct issues is more important than other kinds of litigation. See supra note 133 (while individual rights are personal, free speech issues warrant special standing rules). Accordingly, we identify in these materials in each particular context where and when the present standards of review for speech or expressed conduct and personal responsibility in the federal criminal law must be more faithfully applied or rethought and reformulated, that is, particularized in light of the importance of these values, which are insistently implicated in this kind of litigation in a free society.