Litigated conflict over fundamental rights: A static model
DOI:
https://doi.org/10.15355/epsj.8.2.5Keywords:
Conflict, litigation, constitutional rightsAbstract
This article introduces a static, within-country, game-theoretic model of litigated conflict over fundamental rights. The static model suggests that increased judicial interference in the determination of fundamental rights through democratic elections is never social welfare-increasing, even if judicial and political biases run in opposite directions (i.e., if the judicial process is biased in favor of one interest group and the political process is biased in favor of an ideologically-opposed interest group). In addition, the analysis identifies a set of parameters where social welfare increases if the extent to which the litigated conflict over fundamental rights in the society is constitutionalized is decreased (i.e., if litigation effort becomes more expensive and/or less effective). A few real-world examples of the implications of this static analysis are examined, including gun control and the possible future reconstitution of the judiciary in Syria.References
Bunting, W.C. 2012. “The Conflict over Fundamental Rights: A Dynamic Model.” Unpublished Manuscript. <https://files.nyu.edu/wcb213/public/>
Buscagliaa, E. 2001. “An Analysis of Judicial Corruption and its Causes: An Objective Governing-Based Approach.” International Review of Law and Economics. Vol. 21, No. 2, pp. 233-249.
Coase, R. 1960. “The Problem of Social Cost.” Journal of Law and Economics. Vol. 3, No. 3, pp. 1-44.
Coughlin, P.J. 1992. Probabilistic Voting Theory. New York: Cambridge University Press.
Djankov, S., R. La Porta, F. Lopez-de-Silanes, A. Shleifer. 2003. “Courts.” Quarterly Journal of Economics. Vol. 118, No. 2, pp. 453-517.
Enelow, J. and M.J. Hinich. 1982. “Non-Spatial Candidate Characteristics and Electoral Competition.” Journal of Politics. Vol. 44, No. 1, pp. 115-130.
Fearon, J.D. 1992. “War, Relative Power and Private Information,” in The Annual Meeting of the International Studies Association, 31 March to 4 April 1992, Atlanta, GA.
Fearon, J.D. 1995. “Rationalist Explanations for War.” International Organization. Vol. 49, No. 3, pp. 379-414.
Ferejohn, J.A. and B.R. Weingast. 1992a. “Limitation of Statutes: Strategic Statutory Interpretation.” Georgetown Law Journal. Vol. 80, No. 3, pp. 565-582.
Ferejohn, J.A. and B.R. Weingast. 1992b. “A Positive Theory of Statutory Interpretation.” International Review of Law and Economics. Vol. 12, No. 2, pp. 263-279.
Gartze, E. 1999. “War is in the Error Term.” International Organization. Vol. 53, No. 3, pp. 567-587.
Ginsburg, R.B. (1985). “Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade.” North Carolina Law Review. Vol. 63, No. 2, pp. 375-386.
Hoffman, E. and M.L. Spitzer. 1982. “The Coase Theorem: Some Experimental Tests.” Journal of Law and Economics. Vol. 25, No. 1, pp. 73-98.
Houantchekon, L. 1994. “Electoral Competition with Outside Options.” Unpublished Manuscript. Department of Economics. Northwestern University.
Ingberman, D.E. and D.A. Yao. 1991. “Circumventing Formal Structure through Commitment: Presidential Influence and Agency Control.” Public Choice. Vol. 70, No. 2, pp. 151-179.
Johnson, S., J. McMillan, and C. Woodruff. 2002. “Property Rights and Finance.” American Economic Review. Vol. 92, No. 5, pp. 1335-1356.
Levy, B. and P.T. Spiller. 1994. “The Institutional Foundations of Regulatory Commitment: A Comparative Analysis of Telecommunications Regulation.” Journal of Law, Economics, and Organization. Vol. 10, No. 2, pp. 201-246.
Loewenstein, K. 1948. “Reconstruction of the Administration of Justice in American-Occupied Germany.” Harvard Law Review. Vol. 61, No. 3, pp. 419-467.
Persson, T. and G. Tabellini. 1999. “The Size and Scope of Government: Comparative Politics with Rational Politicians.” European Economic Review. Vol. 43, Nos. 4-6, pp. 699-735.
Powell, R. 1996a. “Bargaining in the Shadow of Power.” Games and Economic Behavior. Vol. 15, No. 2, pp. 255-289.
Powell, R. 1996b. “Stability and the Distribution of Power.” World Politics. Vol. 48, No. 2, pp. 239-267.
Powell, R. 2002. “Bargaining Theory and International Conflict.” Annual Review of Political Science. Vol. 5, No. 1, pp. 1-20.
Wagner, R.H. 2000. “Bargaining and War.” American Journal of Political Science. Vol. 44, No. 3, pp. 469-484.
Wittman, D. 1979. “How War Ends: A Rational Model Approach.” Journal of Conflict Resolution. Vol. 23, No. 4, pp. 743-763.
