Is Adjudication a Public Good?: 'Overcrowded Courts' and the Private-Sector Alternative of Arbitration

This article was published in  Cardozo Journal of Conflict Resolution, Vol. 14, 2013
 It asks which disputing parties deserve subsidized adjudication which should have to pay market rates for it? Our society’s failure to confront this important question allows all disputing parties to pursue the subsidy for themselves. The result is that parties who do not deserve the subsidy — parties who should be paying market rates for adjudication — are consuming public resources that would be better spent on parties who do deserve the subsidy.

One way to end the public subsidy for cases that do not deserve it is for courts to charge the parties to such a case a fee high enough to reimburse the court for its costs of adjudicating the case. Such “user fees” have been proposed by several thoughtful commentators. This article assesses those proposals and suggests that user fees would make litigation look more like arbitration. This article concludes by considering the possibility that the public-sector court system and private arbitration organizations could compete in the market for unsubsidized adjudication and in the market for subsidized adjudication. In short, this article places discussions of overcrowded courts and court user fees in the context of a society — our society — with a strong private-sector alternative to our courts.