Protecting Private Property with Constitutional Judicial Review: A Social Welfare Approach
Daniel H. Cole
Indiana University Maurer School of Law; Indiana University School of Public and Environmental Affairs; Indiana University Bloomington - Workshop in Political Theory and Policy Analysis
Peter Z. Grossman
Butler University - College of Business Administration
September 30, 2006
Review of Law and Economics, Forthcoming
This article proposes that constitutional judicial review should be subject to a social welfare analysis to determine when and if such review is efficient in enhancing social welfare. A model is proposed in which property rights protection is a component of social costs. Judicial review is then assumed to, on net, either add to or subtract from those costs, affecting social welfare generally. It will be shown that under realistic conditions, reflected in real instances, judicial review might not enhance economic efficiency or overall social welfare. We show that the efficiency of constitutional judicial review is likely to vary within the larger institutional context.
Number of Pages in PDF File: 22
Keywords: property, judicial review, social welfare, efficiency
JEL Classification: D61, K11, K4
Date posted: October 2, 2006 ; Last revised: December 16, 2008
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