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Law and the State

Law and the State

A Political Economy Approach

New Horizons in Law and Economics series

Edited by Alain Marciano and Jean-Michel Josselin

Law and the State provides a political economy analysis of the legal functioning of a democratic state, illustrating how it builds on informational and legal constraints. It explains, in an organised and thematic fashion, how competitive information enhances democracy while strategic information endangers it, and discusses how legal constraints stress the dilemma of independence versus discretion for judges as well as the elusive role of administrators and experts.

Chapter 11: Should non-expert courts control expert administrations?

Georg von Wangenheim


Georg von Wangenheim* 1 INTRODUCTION In most modern democracies, administrative decisions are subject to judicial control. Citizens use their right to dispute decisions of public administrations in courts – in some countries extensively, in others to a lesser degree. Due to the wide range of decisions handed down by the public administration, courts are frequently concerned with cases and problems on which they have little expertise. Whenever the courts have less expertise than the administration which has handed down the original decision, the questions whether and why such non-expert control is socially valuable suggest themselves. This chapter investigates these questions. The answers will shed additional light on the discussion over judicial deference, that is, over the degree to which courts should accept administrative or political decisions. Court control of administrative decision making may improve the latter for three reasons. First, and most simple, courts could simply hand down better decisions from a social point of view. This may be due to accidental higher expertise in the specific case or to procedural differences between administrative and judicial decision making which produce sufficiently more and better information in court procedures to offset any lack of expertise (for example, adversarial procedure with stronger effects of advocacy as stressed by Dewatripont and Tirole 1999). For example, Spiller and Talley (2000) base their argument on biased or non-biased review on such superiority of courts. They, and others, ignore the two further reasons. Second, courts do not review a random selection of...

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