The Tragedy of the Judiciary: An Inquiry into the Economic Nature of Law and Courts (original) (raw)
Related papers
An Economic Analysis of the Courts
The Journal of Law and Economics, 1971
In the folklore of criminal justice a popular belief is that the accused will have his case decided in a trial. Empirical evidence does not support this belief. Table 1 indicates that most cases are disposed of before trial by either a guilty plea or a dismissal of the charges. What factors determine the choice between a pretrial settlement and a trial? What accounts for the large proportion of settlements compared to trials? How are certain aspects of the criminal justice process such as the bail system and court delay related to the decision to settle or to go to trial? The main
The price of judicial economy in the US
International Journal of the Legal Profession
In the US, courts widely perceive that judicial scarcity is a common problem threatening the fair and timely resolution of disputes. Courts cite the attendant interest in judicial economy to justify interpreting the procedural and substantive law to reduce the judicial workload or accelerate the resolution of cases. But courts' assumption that there are too few judges to handle the current caseload is hard to substantiate. First, it may not be possible to infer from excessive judicial backlogs or other perceived judicial deficiencies that a shortfall of judges is to blame. Second, even when one confidently perceives that a judicial backlog or other deficiency in a particular US court is attributable to a dearth of judges, one cannot fairly generalize from that example to other US courts and jurisdictions. And third, judgments about judicial deficiencies popularly attributed to the inadequacy of judicial resources may turn on contestable assumptions about judges and adjudication. Given these challenges to measuring the adequacy of judicial resources, one might be skeptical whether judicial economies are worth the costs they impose.
The Economic Analysis of Judicial Behavior
Oxford Handbooks Online
In the analysis of judicial behavior, “economics” has multiple meanings. Some studies emphasize the economic consequences of judicial decisions while others employ the concepts and tools of economic analysis to explain those decisions. Here we focus on studies proceeding from the assumption of rationality (regardless of their methodological approach). Even with this limited focus, the range of substantive topics is impressive. There are many ways to splice and dice them but six stand out: (1) the judge: motivations, careers and performance; (2) selection and retention of judges; (3) opinions and precedent; (4) collegial courts; (5) the hierarchy of justice; and (6) external actors. For each we synthesize the literature and offer directions for future work.
In this paper, we study judicial attitudes and decision-making in mass litigation in the light of social sciences, namely rational choice theory and behavioural economics. These insights offer complementary views that are relevant in times where judges have been assigned increased responsibilities in our societies. We notably argue that even though recent discussions at the European level as well as in several Member-States have urged judges to play 'prominent' and 'leading' roles when monitoring mass proceedings, a key issue has however often been omitted: are these expectations ultimately realistic? Social sciences tend to nuance the great expectations nowadays shared by many policymakers. We first discuss the different roles assigned to judges in the context of mass litigation. Then, we study judicial attitudes from the perspective of rational choice theory. A behavioural approach follows and addresses the effects associated with the magnitude of mass disputes on judicial decision-making. Finally, we apply these insights to a mass proceeding, namely the Dutch Collective Settlement of Mass Claim (WCAM).
Taking justice seriously: the problem of courts overload and the new model of judicial process
This article traces a profound worldwide metamorphosis of the judicial process. It analyses recent procedural legislations adopted in the United Kingdom, the Unites States of America, France, Germany, Spain and Italy fashioned to address the problems of unreasonable delay and access to justice. The main tendencies that emerge from the analysis outline the passage from an authoritarian model of adjudication to a more cooperative approach based on flexibility of the time schedule and availability of alternative choices. Moreover, an instrument generally adopted to reduce the demand for justice is the selection of meritorious cases on the base of the conformity to precedents. It is, indeed, a procedural law development that may change the perspective on the civil law-common law divide.
2009
This book explores the relative advantages and limits of alternative sources of law. It views the sources of law through a law and economics lens, and considers the important issue of institutional design in lawmaking. It considers the respective advantages and proper scope of application of four fundamental sources of law: legislation, judge-made law, customary law, and international law. The defining features of these four sources of law are examined using the formal methods of public choice theory: lawmaking through legislation; lawmaking through adjudication; lawmaking through practice; and lawmaking through agreement. The book begins by examining the sources of law dependent on collective political decision-making, such as legislation. Multiple issues are considered, such as optimal specificity of law, optimal timing of legal intervention and optimal territorial scope of law, and include a thorough discussion on the sources of law derived from judges' decisions, such as com...
Trade-offs between justices, economics, and efficiency
2011
We argue that economics – as the scientific method of analyzing trade-offs – can be helpful (and may even be indispensable) for assessing the trade-off between intergenerational and intragenerational justice. Economic analysis can delineate the “opportunity set” of politics with respect to the two normative objectives of inter- and intragenerational justice, i.e. it can describe which outcomes are feasible in achieving the two objectives in a given context, and which are not. It can distinguish efficient from inefficient uses of instruments of justice. It can identify the “opportunity cost” of attaining one justice to a higher degree, in terms of less achievement of the other. We find that, under very general conditions, (1) efficiency in the use of instruments of justice implies that there is rivalry between the two justices and the opportunity cost of either justice is positive; (2) negative opportunity costs of achieving one justice exist if there is facilitation between the two ...
The Efficient Production of Law. The Political Economy of the Sources of Law
2014
Law and economics scholarship has been predominantly concerned with the content of legal rules rather than the process by which rules are created. The analytical separation of law by its formative process has resulted in an almost exclusive focus on the allocative efficiency of legal entitlements. According to this view, legal rights are treated as “commodities” that people (absent transaction costs and wealth effects) can freely buy and sell, such that the rights are allocated to their highest valued use. In this thesis, I maintain that this conventional approach needs to be integrated with a complementary, process-oriented analysis, capable of accounting for the causal relationship between the efficiency of legal rules and the efficiency of the lawmaking process. The central hypothesis of the present research is that the efficiency of the law-making process is not neutral with respect to the efficiency of the rules: the more efficient the process is in dealing with the pervasive i...
The Economics of Judicial Councils
Berkeley Program in Law Economics, 2007
In recent decades, many countries around the world have institutionalized judicial councils of some sort. These institutions are designed to maintain an appropriate balance between judicial independence and accountability. However, they differ in attributes and competences across the world. Our paper has two aims. First, we provide an economic theory of the formation of judicial councils and identify some of the dimensions along which they differ. Second, we test the extent to which different designs of judicial council affect judicial quality. We find that there is little relationship between councils and quality. We also offer a positive explanation for why judicial councils nevertheless remain attractive institutions. Finally, we discuss several experiences from the perspective of our theory.