© 1992 Karen Selick
 Court Delays? Call in an Economist
An edited version of this article first appeared in the March, 1992 issue of Canadian Lawyer.  If you wish to reproduce this article, click here for copyright info.

 Court Delays? Call in an Economist

What are we going to do about the overload in our justice system?  Criminal cases are being dismissed for delay.  Civil cases are taking years to get heard.  Judges feel they are overworked and underpaid.  

Yet crime keeps rising.  Civil suits show no signs of dwindling.  Things seem to be getting worse, not better.

Everyone involved in the system has his or her own pet solution: more cops, more judges, more courtrooms, better salaries.  But the economy is in trouble, and there's no extra money for these things.  Besides, these suggestions are suspect; they usually come from those who would gain the most from their implementation.

It's time we realized that the problem is not a legal one, but a familiar, recurring economic one: how to allocate scarce resources among competing uses.  The finest legal minds in the country probably don't have the expertise to solve this problem.  It's time to call in outside help.

Enter Bruce L. Benson, a professor of economics at Florida State University.  His book The Enterprise of Law: Justice Without the State (published by the Pacific Research Institute) contains an eye-opening analysis of why the problem exists, what we have been doing to aggravate it, and what we could do to solve it. 

Benson describes the problem as a typical example of "the tragedy of the commons."  When people are able to use a public good at no charge regardless of how much they use, their demand becomes potentially infinite.  It can ultimately destroy the resource.  The near extinction of the buffalo and the whale are good examples.

A more colloquial description might be that our justice system has become a free-for-all, literally and figuratively. 

The price system is one way in which society sometimes rations scarce resources.  Ration cards are another.  A third is queuing:  first come, first served, until the resource runs out, and then everyone else in line simply waits.  It is this third method that we have chosen to employ in our justice system.  

Make no mistake: some method of rationing must be selected, or else we would wind up devoting infinite resources towards filling the infinite demand.  But, Benson argues, the queuing method is not necessarily the best.  Being able to wait in line the longest does not indicate that your need of police or court services is more important than the needs of those who choose not to wait.

Eventually only the least pressing matters will be left for publicly provided mechanisms to handle, as an increasingly exasperated populace abandons both police and courts in favour of private methods of protection and dispute resolution.

Already, businesses and individuals are coping with crime by hiring security guards, installing alarm systems, barring their windows and forming Neighbourhood Watch groups.  Already, those with an urgent need to resolve civil disputes are turning to private courts, arbitration and mediation.  

The implications of this phenomenon, especially to criminal law, are fascinating.  By observing what people are prepared to pay extra for (once in their taxes and again, privately, with their cash or their time), we can determine what they consider most important.

Virtually everyone's priority is to prevent crimes of violence and crimes against property.  That's what those alarm systems, window bars and neighbourhood groups are all about.

But relatively few people are willing to cough up private resources to prevent such dastardly crimes as opening retail stores on Sundays, selling record albums with filthy lyrics, or smoking marijuana. 

Why, then, are our police and courts squandering so much precious time on these victimless crimes?  

The answer, of course, is that there are a lot of special interest groups who find that this misallocation of resources suits their purposes perfectly.  

A similar anomaly occurs in our civil courts.  There are many groups who benefit from the delays and inefficiencies, although few would admit it.

This is where Benson really shines.  He catalogues a panoply of special interest groups and explains the mechanisms that permit them to impose their whims on a hapless public.  Police forces, lawyers, law associations, court administrators, judges, legislators and political lobbyists all come under his microscope. 

Consider judges, for example.  Their salaries are completely independent of both the quality and quantity of work they do.  Thus their incentives to perform efficiently are weak.  

Benson cites the example of justices of the peace in West Virginia who at one time were paid by the case, but were then switched to salaries.  "The number of hearings per day handled by each judge dropped dramatically, the quality of court paperwork deteriorated, and minor court dockets got crowded."

The conventional solutions--more courtrooms, more judges, and so on--are unlikely to be of any lasting assistance, Benson predicts.  "Shortening the wait by increasing judicial resources will bring some people back into the court system who would have opted out, and the wait will quickly return to what it was before the resources were added."

Far more radical changes are needed.  A good start would be getting this book into the hands of lawyers, judges and policy-makers.  Readers who would like a copy should write to the Pacific Research Institute, 177 Post Street, San Francisco, California 94108.

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June 07, 2000