Courts as Auditors of Legislation?

Authors

Daniel Pi, University of Maine School of LawFollow
Giampaolo Frezza, University of Rome
Francesco Parisi, University of Minnesota Law School

Document Type

Article

Publication Date

2022

Abstract

Sources of law vary greatly across geography and human history. Some legal systems identify democratic lawmaking with political deliberation, while others rely on judicial process and judge-made law. This Essay argues that the normative problem of determining a hierarchy of legal sources may be usefully understood in terms of mechanism design, and that legislation and judicial precedent operate complementarily. If the ultimate policy objective is to create legal rules that reflect the "will of the people," judge-made law can function as an audit on the rules promulgated by elected legislatures. The two sources of law, working in conjunction, thereby correct the deficiencies inherent in either approach operating in isolation. *

Publication Title

George Mason Law Review

Volume

29

Issue

2

Article Number

1149

First Page

447

Last Page

469

Suggested Bluebook Citation

Giampaolo Frezza, Francesco Parisi & Daniel Pi, Courts as Auditors of Legislation?, 29 GEO. Mason L. REV. 447 (2022).