Protecting Private Property with Constitutional Judicial Review: A Social Welfare Approach

Review of Law and Economics, Forthcoming

22 Pages Posted: 2 Oct 2006 Last revised: 16 Dec 2008

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

Date Written: September 30, 2006

Abstract

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.

Keywords: property, judicial review, social welfare, efficiency

JEL Classification: D61, K11, K4

Suggested Citation

Cole, Daniel H. and Grossman, Peter Z., Protecting Private Property with Constitutional Judicial Review: A Social Welfare Approach (September 30, 2006). Review of Law and Economics, Forthcoming. Available at SSRN: https://ssrn.com/abstract=933734 or http://dx.doi.org/10.2139/ssrn.933734

Daniel H. Cole (Contact Author)

Indiana University Maurer School of Law ( email )

211 S. Indiana Avenue
Bloomington, IN 47405
United States

Indiana University School of Public and Environmental Affairs ( email )

1315 East Tenth Street
Bloomington, IN 47405
United States

Indiana University Bloomington - Workshop in Political Theory and Policy Analysis ( email )

Indiana University Bloomington
Bloomington, IN
United States
(812) 855-4421 (Phone)

Peter Z. Grossman

Butler University - College of Business Administration ( email )

Indianapolis, IN 46208
United States
317-940-9727 (Phone)

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