The undesirability of detailed judicial reasoning

European Journal of Law and Economics

Volumn 7, Issue 2, 1999, Pages 161-174

  Niv, Moshe Bar ^a   Safra, Zvi ^b  

^a BAR ILAN UNIVERSITY   (Israel)

^b TEL AVIV UNIVERSITY   (Israel)

Author keywords

Detailed judicial reasoning; Litigation process

Indexed keywords

EID: 33750819643     PISSN: 09291261     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (31)

1. Konard Zweigert and Hein Kotz, "Introduction to Comparative Law", II, 123-4 (1987).
2. Peter De Cruz, "Comparative Law in the Changing World", Ch. 8.6 (1995);
3. also see Zweigert and Kotz, Comparative Law in the Changing World, ibid.
4. De Cruz, Comparative Law in the Changing World, ibid,
5. but see Zweigert and Kotz, ibid, 124, for an historical inquiry for the origin of the Court of Cassation. It was formed as the 'tribunal de Cassation' having a primary function to 'assist the legislature rather than to act as a court', which probably affected the development of the French courts' decision making tradition.
6. Zweigert and Kotz, Comparative Law in the Changing World, op. cit.,272; The French practice is followed in other European countries such as: Belgium, Luxsemburg, The Netherlands, Portugal and some of the Nordic countries,
7. see, Rene David and John Brieberly, Major Legal Systems in the World Today, 129-130, (1978).
8. Markesinis, "Comparative Introduction to German Law of Torts", 7ff.(1986).
9. see, De Cruz, Comparative Law in the Changing World, op. cit, Ch 8.8; other European countries that follow the Germain practice include Italy, Switzerland, Sweden and Greece,
10. see, David and Breiberly, Comparative Law in the Changing World, ibid, 130.
11. There are, however, some exceptions: the Constitutional high court in Germany do publishes dissenting opinions (see Markesinis, op. cit.).
12. See Moshe Bar Niv (Burnovski) and Ran Lachman, "Salary or Challenge Predisposition to be Appointed to Judicial Office in the Court System", 42 Hapraklit 321 (1995) (in Hebrew). This empirical study analyzes the motivations of lawyers to become Judges. The results show clearly and significantly that the main motives are related to the quality of the judicial decision making process. Pecuniary motivations are insignificant in lawyers propensity to become a judge.
13. It has been recognized by judges and scholars that there is no 'better test for the solution of a case than its articulation in writing, which is thinking at its hardest', see Karl Llewelyn, The Common Law Tradition of Deciding Appeals, 25 (1960);
14. see also Martha Draigich, "Will the Federal Court of Appeals Perish if they Publish", 44 Am. U.L. Rev, 757, 781-782 (1995),
15. Robert A. Leflar, "Some Observations Concerning Judicial Opionions", 61, Colum. L. Rev, 810 (1961),
16. Wade H. McCree, "Bureaucratic Justice: An Early Warning", 129, U. Pa. L. Rev, 777, 790-791 (1981)
17. and Lasky, "Observing Applate Opinions from below the Bench", 49, Calif. L. Rev, 831-832, (1961).
18. Merril, Query: "Could Judges Deliver More Justice if They Wrote More Opinions?", 64, Judicature, 435 (1981);
19. see also Frank M. Coffin, "The Way of Judge: Reflections from the Federal Appelate Bench", 57-58, (1980).
20. See Milton Friedman and Leonid Savage, "The utility analysis of choices involving risk", J. of Political Economy 1948
21. and Daniel Kahnman and Amos Tversky, "Prospect theory: an analysis of decision under risk", Econometrica 1979.
22. David Friedman's comment "Why there are no risk preferences", J. of Political Economy, 1981, is more related to the second objection.
23. See Irving R. Kaufman, "Reform for a System in Crisis: Alternative Dispute Resolution in the Federal Courts", Fordan L. Rev. 1, 2, (1990).
24. The situation has been described as a crisis in the in-depth analysis of Richard A. Posner "Federal Courts: Crisis and Reform", (1985). On page 65, Posner presents the increase in the case load between 1960 and 1983. District court cases increased by 250 percent, while the increase in the courts of appeals was 686 percent.
25. See also Thomas M. Mengler, "Symposium in Honor of Edward W Cleary: Evidence and Procedure for the Future: Introduction: Lessons for the Future", U. III. L. Rev. 265, 266 (1991): 'There are recent charges of a litigation crisis-court congestion, undue delay, inordinate expense and excessive adversarialness'.
26. see C.J. Orfinger's concurring opinion in Williams v State, 425 So. 2d. 1163 (1983).
27. John P. Gould, "The Economics of Legal Studies", 2 J. of Legal Studies, 279-300 (1973);
28. see also Farber, H. S. and H. C. Katz, "Interest Arbitration, Outcomes, and the Incentive to Bargain", 33 Industrial and Labor Relations Rev, 33, 55 (1979).
29. Gould, supra, note 6 showed how to apply similar methods to the analysis of legal conflicts; Zvi Safra, "Contingent Commodities", in The New Palgrave: A Dictionary of Economics by J. Eatwell, M. Milgateand P. Newman (eds.), 622-623 (1987), provides earlier references from the economics literature.
30. To prove this claim in a more general and formal manner, an assumption on the individual's attitude toward risk should be made. See the condition stated in the coming Theorem and its role in the proof (which appears in the Appendix).
31. Peter A. Diamond and Joseph E. Stiglitz, "Increases in Risk and in Risk Aversion", 8 J. of Economic Theory, 337-360 (1974).