The Civil Judicial Subsidy

Abstract

American society does not require civil litigants to bear the actual cost of using the court; those costs are borne almost entirely by the taxpayer (i.e., the “civil judicial subsidy”). In this Article I ask: is that right? Or is there a more desirable way to apportion court usage costs between the state and litigants?

I develop an evaluative framework that facilitates analysis of the purpose, contours, and cost of the current judicial subsidy. We subsidize court use because, in theory, there are certain “social positives” associated with public adjudication. To date the unspoken assumption has been that these social positives - which I categorize and identify - apply with equal force to all court uses by all players in all cases. To the extent that assumption is mistaken, a precisely measured, differentiated subsidy - one which distinguishes between different court uses and different players - may be more attractive than the status quo. I propose considering a partial user pays system, with a generous access subsidy to ensure non-wealthy litigants have court access; a subsidy for appeals; and a retributive tax on losing litigants (who are not otherwise exempted from costs) equal to the winner’s share of court costs. Such could recapture a significant portion of the current subsidy without threatening the social positives arising from public adjudication.