Does Efficiency Trump Legality? The Case of the German Constitutional Court

Christoph Engel

No 2017_20, Discussion Paper Series of the Max Planck Institute for Research on Collective Goods from Max Planck Institute for Research on Collective Goods

Abstract: The US Supreme Court has the power of certiorari. It may pick its fights. As a beneficial side effect, the court may allocate its resources, in particular the time and energy the justices spend on a case, to worthy causes. In economic parlance, this discretion makes the court more efficient. Efficiency comes at a political cost, though. This discretion also gives the court political power. It may direct its verdict to causes that are politically most relevant, or it may put an issue on the political agenda. Officially German constitutional law does not have certiorari. The Constitutional Court must decide each and every case that is brought. Yet over time the court has crafted a whole arsenal of more subtle measures for managing the case load. This paper shows that it uses these tools to engage in its version of allocating resources to cases. It investigates whether the ensuing efficiency gain comes at the cost of biasing the court’s jurisprudence. The paper exploits a new comprehensive data set. It consists of all (mostly only electronically) published cases the court has heard in 2011. While the data is rich, in many technical ways it is demanding. The paper uses a factor analysis to create a latent variable: to which degree has the court taken an individual case seriously? It then investigates whether observed indicators for bias explain this latent variable. Since the paper essentially investigates a single (independent) case, in statistical terms the findings are to be interpreted with caution. The paper can only aim at finding smoking guns.

Keywords: German Constitutional Court; Efficiency; Case Load; Discretion; Bias (search for similar items in EconPapers)
JEL-codes: C10 C81 D73 D78 H11 K41 (search for similar items in EconPapers)
Date: 2017-09
New Economics Papers: this item is included in nep-law
References: View references in EconPapers View complete reference list from CitEc
Citations:

Downloads: (external link)
http://www.coll.mpg.de/pdf_dat/2017_20online.pdf (application/pdf)

Related works:
This item may be available elsewhere in EconPapers: Search for items with the same title.

Export reference: BibTeX RIS (EndNote, ProCite, RefMan) HTML/Text

Persistent link: https://EconPapers.repec.org/RePEc:mpg:wpaper:2017_20

Access Statistics for this paper

More papers in Discussion Paper Series of the Max Planck Institute for Research on Collective Goods from Max Planck Institute for Research on Collective Goods Contact information at EDIRC.
Bibliographic data for series maintained by Marc Martin ().