The Case for Restricting Access to Courts
MERC Working Paper No. 81-06
40 Pages Posted: 28 Dec 2004 Last revised: 17 Jan 2011
Date Written: May 1, 1981
This article examines unrecognized implications of various doctrines governing access to court. The analysis indicates that doctrines such as standing, res judicata and collateral estoppel have far reaching implications for the nature of adjudication and the basic structure of rights in society. A liberal standing doctrine causes Peremptory Adjudication, creates inalienable rights and erodes the common law doctrine against suing competitors. Inalienability of rights causes the Coase Theorem to fail and creates externalities. Furthermore, allowing suit over non-contractual pure value effects creates closed market monopolies. All these factors reduce efficiency and thereby reduce human welfare. In this sense the analysis (1) indicates the widespread enthusiasm for democratization of the courts is mistaken, and (2) provides the case for restricting access to the courts.
Keywords: standing, stare decisis, res judicata, collateral estoppel, Coase Theorem, courts, legal system, efficiency, adjudication, rights, externalities
JEL Classification: K1, K2, K3, K4
Suggested Citation: Suggested Citation