This paper explains the world’s endemic court congestion problem as a result of the free access public policies and the lack of investment by courts in legal certainty. Free access policies change the nature of the judicial system from a private or club good to a common resource system, vulnerable to overexploitation and congestion problems. Court congestion combined with the lack of proper governance mechanisms to make judges invest in legal certainty prevent the regular functioning of the litigation cycle and create a vicious circle that only reinforce the original problems, increasing court congestion and decreasing the social value of the Judiciary as a dispute settlement mechanism, the Tragedy of the Judiciary. We then show that without adequate judicial interest rates, court congestion may attract sham litigation to stall legal obligations while excluding legitimate claims, an also tragic adverse selection problem.
Gico Jr, Ivo T, The Tragedy of the Judiciary (August 6, 2012).