A Political Economy Approach
New Horizons in Law and Economics series
Edited by Alain Marciano and Jean-Michel Josselin
Chapter 11: Should non-expert courts control expert administrations?
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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