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This chapter is devoted to the topic of judicial activism (or lack thereof) and the quality of energy law from a behavioural law and economics point of view. It complements our previous research by showing that a third branch of government (judiciary) is not immune to impact from social norms, cascades and cognitive anchors created by media (Golecki and Bełdowski, Environmental law and economics, 471–486, 2017). We start with three basic assumptions of the quality of judicial decisions and the latter’s overview from the perspective of law and economics. We then move to the impact of heuristics and biases on adjudication, as well as listing some cascades in energy law. The German nuclear energy policy is discussed in order to note its sudden shift after the Fukushima catastrophe. Subsequently, the legislative reaction is further described to grasp the fallacy of German constitutional ruling on the matter. We suggest that the case of the German nuclear phase-out strengthens our previous findings concerning the sensitivity of judges towards availability of cascades. The conclusions are drawn at the end of the paper.
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Cf. Posner ( 2008), pp. 19–56.
This approach assumes that judicial decisions should be based on reason, however, practical reasonability is limited and decisions can in fact be based on irrational motives or emotions. This position has been explained by MacCormick, who suggested that: “ any mode of evaluative argument must involve, depend on, or presuppose, some ultimate premises which are not themselves provable, demonstrable or confirmable in terms of further or ulterior reasons, yet on the other hand, that our adherence to ultimate principles in the evaluative and normative spheres is not derived by reasoning … does not show that our adherence to such principles is other than a manifestation of our rational nature”, MacCormick ( 1978), p. 265.
Posner ( 2008).
Vermeule ( 2006), pp. 3–4. In particular, he identifies two concurring institutional aspects: institutional capacities and systemic effects.
This moderate approach has been suggested by Simon in 1991 and applied to the model of adjudication by Vermeule ( 2006).
Coase ( 1988), pp. 10–16.
Later Coase repeatedly distanced himself from this thesis, according to which the object of his study was the theory of law, emphasising rather the only economic aspects of his studies (Kitch 1983, p. 192).
Coase ( 1988), pp. 8–30.
Mercuro and Medema ( 1997), p. 61.
This follows from the previously adopted assumptions, according to which the degree of precision is proportional to the incurred cost of adoption of a given legal rule.
Ehrlich and Posner ( 1974), pp. 257–260.
Posner ( 1980), pp. 487–490.
Posner ( 1993).
Hirsch ( 2005).
In this context the opposite solution, namely the application of judge made law in case of rapid social change is at least partly applicable, as proposed by Calabresi, who states that: “ There is an alternate way of dealing with the problem of legal obsolescence: granting to courts the authority to determine whether a statute is obsolete, whether in one way or another it should be consciously reviewed. At times this doctrine would approach granting to courts authority to treat statutes as if they were no more and no less than part of the common law. At other times it would be used to enable courts to encourage, or even to induce, legislative reconsideration of the statute”, Calabresi ( 1982), p. 2. It is obvious that this kind of radical change depending on technological changes, natural disasters or other rapid and unexpected events may become especially frequent within the field of energy law.
Kahneman et al. ( 1982).
Bennett and Broe ( 2010).
Damasio ( 1994).
Cf. Peer and Gamliel ( 2014).
Slovic et al. ( 2002), p. 420.
Rachlinski ( 2007–2008).
Guthrie et al. ( 2000).
Kahneman ( 2011), p. 139.
Kunda ( 1990), p. 493.
Wistrich et al. ( 2015), p. 863.
Maroney ( 2011).
Maroney claims that even judicial anger could effectively be channelled through the virtue of righteousness. Maroney ( 2012).
Kahneman ( 2011), p. 142. It seems that this mechanism could also be applied to some controversial judgments and the problem of populist adjudication or judicial populism.
Pollak and Russell ( 1976).
New York State Department of Health. “Love Canal: Public Health Time Bomb; A Special Report to the Governor and Legislature.” Albany, N.Y. 1978.
Cf. Golecki and Bełdowski ( 2017).
It has been observed that “(a)vailability provides a convincing explanation of Superfund’s existence and its endurance. The behavioural account of Superfund is that the availability of “Love Canal” as a symbol for the problem of abandoned hazardous waste dumps greatly intensified public concern, to the point where a legislative response became nearly inevitable, no matter what the actual facts might be.” Jolls et al. ( 1998), pp. 1520–1521.
The obvious candidate here would be e.g. the U.S. Supreme Court’s decision in Board of Trade of Chicago v. Christie Grain & Stock Co., 198 U.S. 236 (1905), where the case has provided the Supreme Court with an excellent opportunity to clear and restate the judge-made legal regulation, to review and possibly overrule the state-based statutory limitations of speculation. Moreover, the Supreme Court could have possibly aim at altering the whole regulatory framework to set out a new legal distinction between legal and illegal forms of speculation. The court opted for a third solution, drawing a new distinction between gambling and financial insurance, understood as an uncertainty based economic activity. The solution was found strange and built upon the particular case against speculation as dangerous moral problem. The whole line of anti-speculative judgments in the U.S. could be explained by the availability cascade and lobbying of the financial brokers. Cf. Golecki ( 2012).
Jahn and Karolczuk ( 2012).
It is noteworthy that some judgments of the BvR have already been criticised on the bases of lack of empirical knowledge and misinterpretation of statistical data. Cf. Petersen ( 2013).
The Thirteenth Amendment to the Atomic Energy Act Is for the Most Part Compatible with the Basic Law, Press Release No. 88/2016 of 6 December 2016, https://www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/EN/2016/bvg16-088.html [accessed 29 August 2017].
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- Creating Social Norms Through Media, Cascades and Cognitive Anchors: Judicial Activism and the Quality of Energy Law from the Perspective of Behavioural Law and Economics
Mariusz J. Golecki
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