Toward a Study of the Ecology of Judicial Activism?

11 Pages Posted: 5 Mar 2009

See all articles by John C. Reitz

John C. Reitz

University of Iowa - College of Law

Date Written: February 24, 2009

Abstract

This brief comment, to appear in a series of invited comments on Gillian K. Hadfield, "The levers of legal design: Institutional determinants of the quality of law," 36 J. Comp. Econ. 43 (2008), welcomes her initiative to push the legal origins literature in the direction of a more nuanced investigation of the factors that may influence the degree of judicial law-making, but raises a number of reservations with respect to her paper. Most importantly, the comment criticizes the thesis found in some of the legal origins literature, which Hadfield's paper appears to share, that there is a link between a legal system's openness to judicial law-making and the economic performance of the economy associated with that legal system. The comment also expresses skepticism that Hadfield can develop a sufficiently rigorous measure of judicial law-making to serve as a basis for quantitative cross-border comparisons. Finally, the comment criticizes some of the factors on which Hadfield has focused and argues that she has failed to mention other factors that would appear more important. Nevertheless, even if it is not possible to measure the degree of judicial law-making in a way that would enable quantitative cross-border comparisons, the study of relevant factors could shed light on the way in which some legal systems are more open to judicial law-making than others. I suggest calling this a study of the "ecology of judicial activism" and urge that it include, not only Hadfield's focus on institutional incentives, but also cultural factors like political economy, on which at least some of the originators of the legal origins literature are beginning to focus.

Keywords: Legal origins, Judicial law-making, Gillian Hadfield, Comparative Law

JEL Classification: Z00

Suggested Citation

Reitz, John C., Toward a Study of the Ecology of Judicial Activism? (February 24, 2009). U Iowa Legal Studies Research Paper No. 09-08, University of Toronto Faculty of Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=1348595 or http://dx.doi.org/10.2139/ssrn.1348595

John C. Reitz (Contact Author)

University of Iowa - College of Law ( email )

Melrose and Byington
Iowa City, IA 52242
United States

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