StubHub for Courts? Technology, Markets, and New Solutions to Court Congestion

Rescheduling of court hearings is ubiquitous but virtually ignored by academic scholarship. This is so, despite its contributions to court congestion, a perennial problem for courts that has been the subject of repeated, and repeatedly unsuccessful, efforts at reform. In this Article, we aim to show that rescheduling merits scholarly attention, and by diagnosing why and how it contributes to court congestion and delay, we both explain why most efforts at reducing delay fail and identify new possibilities for speeding up dockets. We draw inspiration from online platforms such as StubHub and SpareFare, technologies that have facilitated rescheduling through easy-to-use markets accessible to anyone. At the core of our argument is the observation that previous reforms neglect to recognize that rescheduling constitutes a collective action problem, as lawyers and (crucially) judges often privately benefit from delay in their own cases, even as that delay harms clients and exacerbates congestion for the courts as a whole. In short, prior reforms have not worked because they cannot work; they ignored multiple externalities. We apply our novel market-based theoretical framework that helps internalize the externalities. We argue that this framework can help understand, reform, and redesign the civil procedure system well beyond problems of scheduling.