The issue of use of economics by judges in their reasoning has intrigued me. Can they use it? Should they use it? How can they use it? How should they use it?
There is an ever-growing group of people, including myself, who believe that the use of economics can help to understand law better. Economics is especially useful for understanding the societal effects of law. That is why it is most of all accepted in the area of legislation (e.g. in the Regulatory Impact Assessment), i.e. outside the realm of the actual valid law. As regards adjudication, there is much more hesitance about the proper role of economics.
However, current developments in our world seem to suggest that we may expect judges to deal with economics more often than in the past. It is not surprising any more that judges belong among policy-makers in many countries and therefore need to think about societal consequences of their rulings. Also, parties of disputes seem to put forward arguments based on economic knowledge more often than they used to. Finally, there are more and more judges who have been exposed to Law and Economics at school and also many (European) countries have included the matter into the curriculum of courses for judges.
This expected increase in frequency of use of economics by judges provokes interesting questions. To me, the most interesting question is how the use of insights from economics can be reconciled with traditional (rule-bound) view of the judge. According to this view, the job of the judge is to apply rules which he finds written down in statutes. Is there place for economics in this mindset? If so, where?
Are you interested in my research? Please contact me. The Tilburg Law and Economics Center might arrange your short research-visit stay in Tilburg.
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