Economic analysis and the resolution of public law disputes: the scales, the sword and the blindfold of justice

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Chapter 9 in An Economic Analysis of Public Law, 2021, pp 187-202 from Edward Elgar Publishing

Abstract: Public law litigation -which includes constitutional and administrative law cases- is a strategic game. Legal orders have the mission to enhance the positive externalities arising from the resolution of disputes and to counter the opportunism of the litigants. This opportunism is mainly responsible for the inefficient use of judicial resources which are both inelastic and scarce. Alternative dispute resolution as revisited by economics is a useful tool to that end. Economic analysis also helps to better understand judges and their role as guardians of the systemic success of public action. Should they become experts in regulatory issues as well? How deep must judicial review of public decisions be? It seems better to relate the powers attributed to the Courts with the efficiency of their use and to apply a judicial review that focuses on procedural mechanics and impact assessment rather on the merits of a case.

Keywords: Economics and Finance; Law - Academic; Politics and Public Policy (search for similar items in EconPapers)
Date: 2021
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