von Wangenheim, Georg --- "Should non-expert courts control expert administrations?" [2005] ELECD 112; in Marciano, Alain; Josselin, Jean-Michel (eds), "Law and the State" (Edward Elgar Publishing, 2005)

Book Title: Law and the State

Editor(s): Marciano, Alain; Josselin, Jean-Michel

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781843768005

Section: Chapter 11

Section Title: Should non-expert courts control expert administrations?

Author(s): von Wangenheim, Georg

Number of pages: 23

Extract:

11. Should non-expert courts control
expert administrations?
Georg von Wangenheim*

1 INTRODUCTION

In most modern democracies, administrative decisions are subject to judi-
cial control. Citizens use their right to dispute decisions of public adminis-
trations in courts ­ in some countries extensively, in others to a lesser
degree. Due to the wide range of decisions handed down by the public
administration, courts are frequently concerned with cases and problems
on which they have little expertise. Whenever the courts have less expertise
than the administration which has handed down the original decision, the
questions whether and why such non-expert control is socially valuable
suggest themselves. This chapter investigates these questions. The answers
will shed additional light on the discussion over judicial deference, that is,
over the degree to which courts should accept administrative or political
decisions.
Court control of administrative decision making may improve the latter
for three reasons. First, and most simple, courts could simply hand down
better decisions from a social point of view. This may be due to accidental
higher expertise in the specific case or to procedural differences between
administrative and judicial decision making which produce sufficiently
more and better information in court procedures to offset any lack of
expertise (for example, adversarial procedure with stronger effects of advo-
cacy as stressed by Dewatripont and Tirole 1999). For example, Spiller and
Talley (2000) base their argument on biased or non-biased review on such
superiority of courts. They, and others, ignore the two further reasons.
Second, ...