The Tragedy of the Judiciary: An Inquiry into the Economic Nature of Law and Courts

Gico Jr., I.T. (2020). The Tragedy of the Judiciary: An Inquiry into the Economic Nature of Law and Courts. German Law Journal, 21(4), 644-673. doi:10.1017/glj.2020.34

30 Pages Posted: 18 Aug 2018 Last revised: 21 May 2020

See all articles by Ivo T. Gico Jr.

Ivo T. Gico Jr.

Centro Universitário de Brasília (UniCEUB)

Date Written: May 20, 2020

Abstract

This Article 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 has a dual nature—coercion and compliance—and that law as coercion is actually a club good that requires a complementary good to be useful, courts. But because courts are private goods in nature, the bundled product will behave as a private good. However, the unrestricted implementation of access-to-justice policies with the objective of increasing the people’s access to courts will transform the bundled product into a common pool resource. The counterintuitive result of this transformation is that granting unrestricted access to justice might actually prevent people from accessing 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

Gico Júnior, Ivo Teixeira, The Tragedy of the Judiciary: An Inquiry into the Economic Nature of Law and Courts (May 20, 2020). Gico Jr., I.T. (2020). The Tragedy of the Judiciary: An Inquiry into the Economic Nature of Law and Courts. German Law Journal, 21(4), 644-673. doi:10.1017/glj.2020.34, Available at SSRN: https://ssrn.com/abstract=3226825 or http://dx.doi.org/10.2139/ssrn.3226825

Ivo Teixeira Gico Júnior (Contact Author)

Centro Universitário de Brasília (UniCEUB) ( email )

SEPN 707/909 - Campus UniCEUB
Asa Norte
Brasilia, DF 70790-075
Brazil

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