The Tragedy of the Judiciary: An Inquiry into the Economic Nature of Law and Courts
30 Pages Posted: 18 Aug 2018 Last revised: 31 Jul 2019
Date Written: November 11, 2018
This paper explores the economic nature of law and courts as an explanation for the world’s endemic court congestion problem. The economic theory of goods and services is used to demonstrate that law as coercion is a club good, courts are private goods, and both are complementary goods. These results are then used to show that traditional access-to-justice policies transform the economic nature of courts into a common pool resource, which may lead to court congestion and increased access to the judicial system while simultaneously excluding people from having access to their rights, the Tragedy of the Judiciary. Two policy implications are explored: the importance of legal certainty for the tragedy mitigation, and the potentially adverse selection problem resulting from court congestion.
Keywords: Court Congestion; Legal Theory; Nature of Law; Nature of Courts; Tragedy of the Judiciary
JEL Classification: K40; K41; K49
Suggested Citation: Suggested Citation