Judging Regulators

Drawing insights from economics and political science, Judging Regulators explains why the administrative law of the US and the UK has radically diverged from each other on questions of law, fact, and discretion.

Drawing insights from economics and political science, Judging Regulators demonstrates how the administrative law of both the US and the UK has been polarized along a spectrum of effective 'veto-gates' since the mid-20th century. The author systematically compares and contrasts administrative law in the US and the UK, proposing an original interdisciplinary theory that integrates the concept of veto-gates into a strategic model of judicial review of administrative action. He explains the current divergence in administrative common law between both sides of the Atlantic, forecasting their future in light of recent destabilizing political developments, such as the attempts by US Congress to abolish Chevron deference and the UK Supreme Court's interventionist decision in R (on the application of Miller) v. The Prime Minister, contrary to the long-standing Wednesbury unreasonableness standard. Applying his Veto-gate Theory of Administrative Common Law, Ip theorizes how long-term changes in the polities' number of veto-gates is key to understanding why an antithesis emerged between these two flagships of the common law world. A crucial overview of the history and future of administrative law, this book is critical reading for scholars and researchers of public law and comparative law, particularly those focusing on comparative administrative law in common law contexts. Its theoretical insights will also be useful to political scientists and economists interested in judicial politics and regulation.

Government regulation is ubiquitous today in rich and middle-income countries--present in areas that range from workplace conditions to food processing to school curricula--although standard economic theories predict that it should be rather uncommon. In this book, Andrei Shleifer argues that the ubiquity of regulation can be explained not so much by the failure of markets as by the failure of courts to solve contract and tort disputes cheaply, predictably, and impartially. When courts are expensive, unpredictable, and biased, the public will seek alternatives to dispute resolution. The form this alternative has taken throughout the world is regulation. The Failure of Judges and the Rise of Regulators gathers Shleifer's influential writings on regulation and adds to them a substantial introductory essay in which Shleifer critiques the standard theories of economic regulation and proposes "the Enforcement Theory of Regulation," which sees regulation as the more efficient strategy for social control of business. Subsequent chapters present the theoretical and empirical case against the efficiency of courts, make the historical and theoretical case for the comparative efficiency of regulation, and offer two empirical studies suggesting circumstances in which regulation might emerge as an efficient solution to social problems. Shleifer does not offer an unconditional endorsement of regulation and its expansion but rather argues that it is better than its alternatives, particularly litigation.

A noted economist argues that the ubiquity of regulation can be explained by its greater efficiency when compared to litigation. Government regulation is ubiquitous today in rich and middle-income countries—present in areas that range from workplace conditions to food processing to school curricula—although standard economic theories predict that it should be rather uncommon. In this book, Andrei Shleifer argues that the ubiquity of regulation can be explained not so much by the failure of markets as by the failure of courts to solve contract and tort disputes cheaply, predictably, and impartially. When courts are expensive, unpredictable, and biased, the public will seek alternatives to dispute resolution. The form this alternative has taken throughout the world is regulation. The Failure of Judges and the Rise of Regulators gathers Shleifer's influential writings on regulation and adds to them a substantial introductory essay in which Shleifer critiques the standard theories of economic regulation and proposes “the Enforcement Theory of Regulation,” which sees regulation as the more efficient strategy for social control of business. Subsequent chapters present the theoretical and empirical case against the efficiency of courts, make the historical and theoretical case for the comparative efficiency of regulation, and offer two empirical studies suggesting circumstances in which regulation might emerge as an efficient solution to social problems. Shleifer does not offer an unconditional endorsement of regulation and its expansion but rather argues that it is better than its alternatives, particularly litigation. Contributors Nicola Gennaioli, Anthony Niblett, Richard A. Posner, Simeon Djankov, Rafael La Porta, Florencio Lopez-de-Silanes, Edward L. Glaeser, Simon Johnson, Casey B. Mulligan

Regulating Judges presents a novel approach to judicial studies. It goes beyond the traditional clash of judicial independence versus judicial accountability. Drawing on regulatory theory, Richard Devlin and Adam Dodek argue that judicial regulation is multi-faceted and requires us to consider the complex interplay of values, institutional norms, procedures, resources and outcomes. Inspired by this conceptual framework, the book invites scholars from 19 jurisdictions to describe and critique the regulatory regimes for a variety of countries from around the world.

Thoroughly revised and updated for this Fifth Edition, Judges on Judging offers insights into the judicial philosophies and political views of those on the bench. Broad in scope, this one-of-a-kind book features "off-the-bench" writings and speeches in which Supreme Court justices, as well as lower federal and state court judges, discuss the judicial process, constitutional interpretation, judicial federalism, and the role of the judiciary. Engaging introductory material provides students with necessary thematic and historical context making this book the perfect supplement to present a nuanced view of the judiciary. "Judges on Judging is consistently rated by my students as their favorite book in my class. No other single volume provides them with such a clear and accessible sense of what judges do, what courts do, and the way judges think about their roles and their courts." —Douglas Edlin, Dickinson College

Foreword / Justice Richard Goldstone -- 1. Regulating judges: challenges, controversies and choices / Richard Devlin and Adam Dodek -- 2. The Australian judiciary: resistant to reform? / Gabrielle Appleby and Suzanne Le Mire -- 3. Beyond independence and accountability: balancing judicial regulation in Brazil / Maria Angela Jardim De Santa Cruz Oliveira -- 4. 'Fighting words': regulating judges in Canada / Adam Dodek and Richard Devlin -- 5. Moving target -- the regulation of judges in China's rapidly evolving legal system / Ray Worthy Campbell and Fu Yulin -- 6. Regulatory reform in Croatia: an uphill battle to enhance public confidence / Dubravka Aksamovic -- 7. Judicial policy in England and Wales: a new regulatory space / Graham Gee -- 8. Just 'the mouth' of statutory law or more?: the theory and practice of judicial regulation in Germany / Christian Wolf and Fabienne Klass -- 9. Balancing the scales of justice in India: from parliamentary supremacy to judicial supremacy and back? / Tony George Puthucherril -- 10. Reluctant reformers? formalising judicial regulation in Ireland / David Fennelly -- 11. Decentralized regulation: reconciling interbranch tensions in Israel / Limor Zer-Gutman -- 12. Clash of visions: regulating judges and prosecutors in Italy / Marco Fabri -- 13. Regulating judges, Japanese-style: the prevalence of informal mechanisms / Kay-Wah Chan -- 14. A judicial code of ethics: regulating judges and restoring public confidence in Malaysia / Jaclyn L. Neo and Helena Whalen-Bridge -- 15. Discipline and modernise: regulating New Zealand judges / Tim Dare -- 16. The Portuguese judiciary amid old and new crises / Fernando Dias Simões -- 17. An internal code of ethics: regulating judges in Singapore / Helena Whalen-Bridge and Jaclyn Neo -- 18. Regulating judges in Russia's dual state: between constitutional and administrative regimes / Alexei Trochev -- 19. Struggling to adapt: regulating judges in South Africa / Hugh Corder -- 20. Regulating judges in the United States: concerns for public confidence / Sarah M.R. Cravens

Papers presented at the fourth annual World Trade Forum Conference held in Neuchâtel, Switzerland, on August 21-22, 2000.